Timothy P. O'Neill
Chicago Daily Law Bulletin
Copyright 2004 Law Bulletin Publishing Company
May 7, 2004
Standard terms and tangled law
Waiver, forfeiture, manifestly erroneous, de novo -- words that make most lawyers' eyes glaze over. Yet these concepts are stock-in-trade for appellate lawyers. Today, we'll look at two recent cases showing that the reason appellate lawyers sometimes have trouble with these ideas is that the courts often do not understand them.
Start with this paragraph from a recent Illinois Supreme Court decision reviewing the legality of a seizure of a person:
"A trial court's ruling on a motion to suppress evidence will be reversed only if that ruling is manifestly erroneous. People v. Mitchell, 165 Ill.2d 211, 230 (1995). However, if neither the facts nor the credibility of witnesses is questioned, de novo review is appropriate. Id. Because defendant does not contest the facts or the credibility of the witnesses, we will review this issue de novo." People v. Morris, 2004 Ill. LEXIS 360, *25 (March 18).
What is wrong with this paragraph? Almost everything.
For openers, the legal holding of Mitchell was explicitly repudiated by the Illinois Supreme Court three years ago in People v. Sorenson, 196 Ill.2d 425 (2001). Sorenson replaced the "manifestly erroneous" standard of review for motions to suppress with the new system established by the U.S. Supreme Court in Ornelas v. U.S., 517 U.S. 690 (1996). This system bifurcates the issues, reviewing factual findings for clear error, while reserving de novo review for the ultimate legal ruling. The theory behind Ornelas is that while the trial court deserves great deference for its factual findings, the reviewing court should have the final, unfettered word on all legal issues. Sorenson noted that the Illinois Supreme Court had already applied the Ornelas rule to review of motions to suppress statements (In re G.O., 191 Ill.2d 37 (2000)) and that this case merely extended it to search and seizure issues.
The Morris court's out-dated citation of an explicitly overruled line of authority is indefensible. The Supreme Court relied on Sorenson as recently as last December. See People v. Braggs, 2003 Ill. LEXIS 2604 (Dec. 18). This carelessness will undoubtedly cause needless confusion among both lower courts and appellate lawyers.
By the way, the last two sentences of the paragraph from Morris are equally erroneous. They are based on the rule of People v. Foskey, 136 Ill.2d 66, 76 (1990), a rule that Sorenson implicitly abolished. The use of de novo review is in no way dependent on whether a case presents a factual dispute on appeal.
Factual findings are reviewed deferentially and law is reviewed de novo. Period.
The ultimate ruling on a motion to suppress is not reviewed de novo because there is no factual dispute; it is reviewed de novo regardless of whether there is a factual dispute. (If you don't believe me, read Judge Ruggero J. Aldisert's perceptive opinion in U.S. v. Ziskin, 360 F.3d 934, 942 (9th Cir. 2003).)
And there's more bad news from the Illinois Supreme Court. The court recently held that, since a guilty plea results in a waiver of all non-jurisdictional issues, it was error for an appeals court to consider a previously unraised Apprendi issue for the first time on appeal under the Rule 615(a) "plain error" doctrine. People v. Townsell, 2004 Ill. LEXIS 669 (April 15).
Follow the word "waiver" in this nightmare of a paragraph from the Townsell opinion:
"Rule 615(a) is concerned with waivers that result from failing to bring an error to the trial court's attention... In a guilty plea, by contrast, 'waiver' refers to the 'voluntary relinquishment of a known right....' But Rule 615(a) in no way speaks to waivers that are voluntary relinquishments of known rights... The Appellate Court had no authority to forgo the administrative convenience of waiver and reach the merits ... as administrative convenience has absolutely nothing to do with the waiver at issue in this case." At *6-*7 (emphasis added).
Huh?
When "waiver" gets used five times in one paragraph, it's a tip-off that something is wrong.
The problem is this: Sometimes the Illinois Supreme Courts uses "waiver" when the justices mean "waiver." But sometimes the court uses "waiver" when they mean "forfeiture."
This is a distinction the U.S. Supreme Court has had no difficulty with since its decision in U.S. v. Olano, 507 U.S. 725 (1993). The court held that, "Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the 'intentional relinquishment or abandonment of a known right.' Citation omitted
"... Mere forfeiture, as opposed to waiver, does not extinguish an error under the plain error doctrine... If a legal rule was violated at trial, and if the defendant did not waive the rule, then there still has been an 'error' within the meaning of the plain error doctrine despite the absence of a timely objection." Olano, at 733.
What the Illinois Supreme Court was trying to say in the paragraph from Townsell was that a "waiver" extinguishes an error, while a mere "forfeiture" does not. Thus, an appeals court has the authority under Rule 615(a) to, under certain circumstances, consider errors that have been merely "forfeited."
Thus, with the help of the plain error doctrine of Rule 615(a), a defendant may sometimes extricate himself from a forfeiture. But, to paraphrase Ian Fleming, waivers are forever.
The Illinois Supreme Court would do all appellate lawyers a favor by correcting Morris and Townsell as soon as possible.
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