Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 151 Issue: 133
Copyright (c) 2005 by Law Bulletin Publishing Company

July 08, 2005

Court Recognizes Separate Species

What's summer without a trip to the zoo? So today we will look at the baboons and orangutans.

Here's the situation.

Allen is the defendant in a criminal case. The judge inadvertently uses an erroneous jury instruction. Allen's attorney does not notice this. Allen is convicted.

Now consider defendant Brown in a separate criminal case. The judge uses the same erroneous instruction. Brown's attorney, however, does notice it. Yet Brown's attorney says: ''Judge, I notice that the instruction you propose giving is different from the standard instruction. However, I want the record to reflect that Mr. Brown and I have no objection to its use.'' The erroneous instruction is given. Brown is likewise convicted.

On appeal, both Allen and Brown wish to raise the issue of the erroneous jury instruction. May each of them raise the issue on appeal?

The answer in federal court is clear. Federal courts distinguish ''forfeiture'' of an issue from ''waiver'' of an issue. Forfeiture ''is the failure to make a timely assertion of a right.'' U.S. v. Olano, 507 U.S. 725, 733 (1993). By definition, ''forfeiture'' is not a strategic decision; in fact, it is not a ''decision'' at all. It is ''basically an oversight.'' U.S. v. Cook, 406 F.3d 485, 487 (7th Cir. 2005).

Waiver, on the other hand, is the ''intentional relinquishment or abandonment of a known right.'' Olano, at 733. A waiver is valid only if made voluntarily, knowingly and intelligently. Unlike forfeiture, a waiver is a ''deliberate decision not to present a ground for relief that might be available in the law.'' Cook, at 487.

The distinction between ''forfeiture'' and ''waiver'' is crucial for deciding whether a defendant appealing his federal criminal conviction may raise an issue for the first time on appeal. Federal Rule of Criminal Procedure 52(b) is the mechanism for asking an appeals court to consider an unpreserved issue under the ''plain error'' doctrine. Yet the U.S. Supreme Court has made it clear that while a forfeited issue may, in some circumstances, be considered as plain error on appeal, a waived issue may not. Olano, at 733-34.

Thus, Allen's failure to timely object at trial is a mere forfeiture; under Rule 52(b), he may attempt to argue plain error. Yet Brown's waiver actually extinguishes the error; the waiver precludes raising the error on appeal, even under the plain-error doctrine.

Are there any limits to what a defendant may waive? Ineffective assistance of counsel provides one limit. Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals notes that if a defendant waives a jury based on his attorney's erroneous report that baboons from the Brookfield Zoo are regularly impaneled as jurors in the Northern District of Illinois, the waiver is invalid. Cook, at 487.

Moreover, even if the defendant and the U.S. attorney jointly agree to allow 12 orangutans to constitute the jury, an appellate court may void this decision as not conforming to a minimum of civilized procedure. U.S. v. Bownes, 405 F.3d 634, 637 (7th Cir. 2005).

Yet, as a general rule, a forfeited error may possibly qualify as plain error, while a waived error may not.

How about Illinois? The problem is that Illinois state courts have traditionally combined the concepts of waiver and forfeiture into one all-purpose term: ''waiver.'' Illinois' use of the term ''waiver'' to cover both what the federal courts recognize as forfeiture as well as waiver has caused enormous confusion.

For example, when the Illinois Supreme Court has dealt with the failure to raise an issue in a post-trial motion, it has deemed that issue waived, rather than merely forfeited. People v. Enoch, 122 Ill.2d 176, 186 (1988).

Similarly, it has characterized the failure to raise an issue at trial as a waiver of that issue, when the federal courts would characterize it as a forfeiture. People v. Carlson, 79 Ill.2d 564, 577 (1980).

At the same time, it characterizes rights that are voluntarily, intentionally and knowingly given up through a guilty plea as also being waived. People v. Jackson, 199 Ill.2d 286 (2002).

And this raises an important issue. Illinois' version of the federal plain-error rule is found in Supreme Court Rule 615(a). This rule allows plain errors to be raised before an appellate court even though ''they were not brought to the attention of the trial court.'' Can an Illinois defendant try to apply the state's plain-error doctrine to all errors that Illinois would call waived — both what the federal courts would call forfeited as well as waived errors? Or is the Illinois plain-error doctrine limited, as the federal doctrine is, to only what the federal courts would call forfeited errors?

The 3d District Appellate Court, channeling Gertrude Stein, held that for Illinois plain-error purposes, ''A waiver is a waiver is a waiver.'' That is, since a waived error can be a plain error in Illinois, and since the Illinois Supreme Court considers both traditionally forfeited and traditionally waived errors to both be ''waived,'' then a defendant should be allowed to ask an appellate court to use the plain-error rule to consider an issue that a defendant voluntarily, intelligently and knowingly waived through a guilty plea. People v. Townsell, 783 N.E.2d 164 (3d Dist. 2003).

The Illinois Supreme Court reversed. People v. Townsell, 209 Ill.2d 543 (2004). Essentially, the court adopted the federal rule that, while ''forfeited'' issues may be considered through plain error, a voluntary, intelligent and knowing waiver extinguished any opportunity to have that issue considered through plain error. What made the Townsell opinion so exasperating, however, is its failure to ever use the word ''forfeited.'' Instead, it erroneously insists that there were actually two separate kinds of waiver.

All of which makes the Supreme Court's recent opinion in People v. Herron so welcome. 2005 Ill. LEXIS 631 (May 19). Herron holds that the federal plain-error test — from Federal Rule of Criminal Procedure 52(b) and the Olano decision — is essentially the same as Illinois' plain-error test found in Rule 615(a).

Significantly, Herron holds that, ''The plain error test, in both its federal and state formulas, is more aptly described as a standard to help a reviewing court determine when to excuse forfeiture.'' Herron, *19 (emphasis added). The court goes on to use the word ''forfeiture'' five times and ''forfeit'' once.

It would be nice to report that the Illinois Supreme Court has once and for all acknowledged the difference between waiver and forfeiture. But on the very same day it decided Herron, the court used ''waiver'' when it meant ''forfeiture,'' in both People v. Durr, 2005 Ill. LEXIS 628, *34 (May 19), and People v. Mandi H., 2005 Ill. LEXIS 633, *10 (May 19).

Yet another aspect of Herron also merits the attention of defense lawyers handling death penalty cases. Herron clarifies that there are two separate categories of plain error:

• Errors that may have affected the outcome in a closely balanced case.

• Errors that may not have affected the outcome, but that nevertheless erode the integrity of the of the judicial process and undermine the fairness of the defendant's trial. *27-*32.

The court emphasized that the closeness of the evidence is completely irrelevant in considering this second category.

Could it be argued that all forfeited errors in death penalty cases fit under the second prong of the plain error test? Moreover, when the issue is life and death, why shouldn't every error be considered regardless of forfeiture? This is similar to the ''in favorem vitae'' review that South Carolina used for all capital cases between 1794 and 1991. All errors were considered regardless of whether there had been proper objection. Also, if there was any doubt about prejudice, the doctrine provided that doubt should always be resolved in the defendant's favor. See State v. Livingston, 233 S.C. 400, 409 (1958).

At the very least, Herron has now provided lawyers and judges with the vocabulary to distinguish very different situations in which errors are not properly raised in the trial court. It deserves the serious attention of both bench and bar.