Timothy P. O'Neill
Chicago Daily Law Bulletin
Volume 151, No. 58
Copyright (c) 2005 by Law Bulletin Publishing Company
March 25, 2005
AND THE LOCKSTEP BEAT STILL GOES ON
Last month I discussed the Illinois Supreme Court's shameful role in allowing the U.S. Supreme Court to regularly review and reverse pro-defense decisions in the area of search and seizure. This is the result of the Illinois Supreme Court's announcement 20 years ago that it would interpret the Illinois Constitution's search and seizure provision -- Article I, section 6 -- in "lockstep" with the U.S. Supreme Court's interpretation of the Fourth Amendment.
What this means, of course, is that Article I, section 6, is a dead letter: lockstep simply cuts out the text of the Fourth Amendment and pastes it over Article I, section 6. By adopting lockstep, the Illinois Supreme Court effectively ceded all its interpretive power in search and seizure matters to the U.S. Supreme Court. The U.S. Supreme Court has returned the favor by reversing around a dozen pro-defense Illinois search and seizure decisions over the past two decades.
This month let's look at another area where the Illinois Supreme Court's lockstep doctrine has spawned problems -- double jeopardy.
Jason Henry was accused of punching Curtis Hurlbut, causing Hurlbut to fall, strike his head on a sidewalk, and die. Henry was charged with involuntary manslaughter and aggravated battery based on committing a battery on a public way.
At the close of evidence at his jury trial, Henry moved for a directed verdict on the aggravated battery charge. He contended that the state's evidence showed that the victim was standing in a private party's front yard when he was struck and that he merely landed on the "public way," meaning the sidewalk.
After hearing arguments from both sides, the judge stated, "I am going to grant the directed verdict."
The prosecutor immediately announced that he was appealing the judge's decision. This led to an extensive discussion concerning whether such a decision was appealable and, if so, whether the remaining charge should be severed.
After further discussion, the court then said it would "vacate its previous order" and allow both sides to conduct further research. Later, the prosecution presented the court with case law suggesting that the charge of aggravated battery was proper in the case. The trial judge agreed and instructed the jury on aggravated battery, and the jury proceeded to find defendant guilt of the charge.
Henry asked the Illinois Supreme Court to find that the trial judge's statement "I am going to grant the directed verdict" was an unequivocal decision that functioned as an acquittal under principles of double jeopardy.
The Supreme Court agreed. It found the trial judge's statement to be a final resolution of a necessary element of the charge. Thus, it held that double jeopardy principles constitutionally precluded the trial judge from reconsidering the "acquittal." People v. Henry, 204 Ill.2d 267, 288 (2003).
Justice Charles E. Freeman, however, filed a very perceptive special concurrence. He noted first that the Illinois cases used by the majority were predicated on the federal double jeopardy clause in the Fifth Amendment as well as the double jeopardy clause in the Illinois Constitution (Article I, section 10).
Second, he reminded the court that it had previously held that the state double jeopardy clause would be interpreted in lockstep with the federal double jeopardy clause. See In re P.S., 175 Ill.2d 79, 91 (1997); People v. Levin, 157 Ill.2d 138 (1993).
Third, Freeman noted that there was a serious split among the federal courts as to whether the Fifth Amendment's double jeopardy clause precluded a trial judge from reconsidering a mid-trial oral grant of a directed verdict.
The upshot, of course, is if the court is wrong about what the Fifth Amendment's double jeopardy clause means, then, under lockstep, it must also be wrong about what Article I, section 10, means.
Freeman was prescient.
Last month the U.S. Supreme Court held that the Fifth Amendment's double jeopardy clause does not preclude a trial judge from reconsidering a mid-trial determination of the sufficiency of the state's proof on a charge. Smith v. Massachusetts, 160 L.Ed.2d 914, 925 (2005); id., at 928 (Ginsburg, J., dissenting). The Fifth Amendment will prevent reconsideration of such a mid-trial ruling only if state law treats the original ruling as a final resolution of the merits. Thus, whether the Fifth Amendment applies depends totally upon an issue of state law.
The U.S. Supreme Court's decision in Smith thus shows that the Illinois Supreme Court's interpretation of the Fifth Amendment in Henry was completely wrong.
So is Henry still good law?
Recall that Henry relied not only on the Fifth Amendment's double jeopardy clause but also on the Illinois Constitution's double jeopardy clause found in Article I, section 10. Under normal principles of federalism we would say that, despite Smith v. Massachusetts, the Illinois ruling in Henry is still good law because it is a pro-defense decision supported by "adequate and independent state grounds."
But, through its adoption of the lockstep doctrine, the Illinois Supreme Court has forfeited its ability to rely on Illinois' double jeopardy clause as an adequate and independent state ground. Lockstep has effectively repealed Article I, section 10; the Fifth Amendment provides the only double jeopardy protection in Illinois. Through its adoption of lockstep in double jeopardy, the Illinois Supreme Court has transformed Illinois from a sovereign state in the federal system to nothing more than the Illinois Circuit, with the state's high court being the U.S. Court of Appeals for the Illinois Circuit.
Smith has overruled Henry just as surely as it has overruled any federal case to the contrary.
True, the Illinois Supreme Court can affirm the result in Henry merely by holding that Illinois law in general prevents reconsideration of a trial judge's mid-trial grant of a directed verdict. (Indeed, the defendant prevailed in Smith because this is what the U.S. Supreme Court found that Massachusetts law provided.) But lockstep has precluded the Illinois Supreme Court from relying on Article I, section 10, to reach this result. Again, we essentially have no Article I, section 10, any longer in Illinois; for double jeopardy protection, the people of Illinois may only rely on the Fifth Amendment's double jeopardy clause.
The Illinois Supreme Court's use of lockstep in the areas of search and seizure and double jeopardy is an affront to our principles of federalism. Unquestionably the Illinois Supreme Court has every right to say that, in interpreting the Illinois Constitution, it will give special attention to the U.S. Supreme Court's interpretation of analogous constitutional provisions. But lockstep is nothing less than the "constructive repeal" of a provision of the Illinois Constitution. It is both an abdication of judicial responsibility and an insult to our state's legal system.
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