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People v. Barrier8/19/2005
for the court to state any available alternatives and without time to explain to the defendant what rights she had with respect to what was happening, defense attorney said: "That would be fine." Both assistant State's attorneys also immediately agreed. It cannot be denied that defendant raised no objection to proceeding with the smaller jury, but it also cannot be argued on these facts that her silence constituted acquiescence to her attorney's waiver of a constitutional and statutory right that she knew she possessed. Nor is there any support anywhere in the record for the State's argument on appeal that the attorney's waiver was a matter of legitimate trial tactics or prudent trial strategy. See People v. Scott, 355 Ill. App. 3d 741, 824 N.E.2d 302 (2005). The State merely assumes that defense counsel not only thought about the wisdom of waiving the 12-person jury but also drew an instantaneous conclusion that there were legitimate and prudent reasons for doing so. The record does not support such an assumption.
The majority asserts that it cannot be argued that defendant might have been unaware of her right to the 12-person jury because that was what had been selected the preceding day. That assertion completely ignores the very real possibility that a person unschooled in constitutional law might understand that a thing (such as picking a jury of a certain size) may be done as a matter of custom or practice without not knowing that she had a right to a jury of that size. And, in fact, such a limited understanding would actually be a misunderstanding reinforced by the failure of the court or her attorney to point out that entitlement to her. Again, the record is devoid of any indication that she was so advised. The State has asked us to "presume" defendant's right to a 12-person jury completely out of existence, and the majority consents.
The majority also appears to take the position that defendant's challenge is suspect because she did not include a claim of ineffective assistance of counsel in her post-trial motion seeking a new trial. She did, however, assert in that motion that her trial attorney's agreement to proceed to trial with eleven jurors was error. I am unaware of any requirement (nor has the majority cited any) that this claim of error must be accompanied by a claim of ineffective assistance in order to raise an appropriate and cognizable allegation of error or to merit full consideration of the issue on review.
For the reasons I have set out, I believe there was an ineffective waiver of defendant's constitutional and statutory right to trial by a jury of twelve, that defendant must be presumed to have been prejudiced by the attempted waiver, and that the conviction should be reversed and the cause remanded for a new trial.
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