peter j dockery judge of the eighteenth judicial circuit my office in this case judge dockery granted the defense request for a six person jury or the state's objection to dockery did so despite the clear language of the court of criminal procedure seven twenty five  slash one fifteen s for that the jury shall consist of twelve members and also did so in the absence of any authority to allow a jury of less than twelve the kids without the consent or agreement of the state the law in the state of illinois is clear the right to waive a jury of twelve is not absolute it is subject to procedural conditions including an agreement of state absent that agreement judge jack we had no discretion under the law  in our constitution in our statutes real decided that it is desirable to spread the responsibility of determining guilt over a group of twelve persons  less than twelve members are ok yes justice freiman there there have been cases but only with the remainder of the party only with the agreement of the state and there is no dispute cases from every district i have said that he can do so but only with the agreement of the people and concurrence from the court and that was the rule when the one nine hundred seventy constitution was enacted that's the rule cited in people versus scuderi which is still good law and is the law of the land and has been followed in every district in this case including people versus ours where the precise question was does the defendant have the right to waive a jury of less and full members without the agreement of the people and the case the defendant was accused of rape and murder of a child and the defendant sought to waive injury in the the people agree yet on two occasions the court over old that attempt to waive in the courts in again it's fairly it's a slightly different issue as to whether or not the the court should have accepted the waiver of this court said that it was improper to to not allow the defendant to waive in that case in court said that  the court said with reference to that issue none of these cases they're talking about of the authority of the court and where the court does have a forty in governing of the selection process and juries none of these cases over go so far as to cert an inherent power in the judiciary to override the choice of the parties in determining whether a particular case is to be tried by a jury or by the court or to override the determination by the legislature as to the method of trial employed were juries not required by the constitution and in it at that time a jury trial was not required by the constitution to find him the right to waive and ask for a bench trial and a court cannot override it so it i believe that that partially answers the question of course the question is not before the court would it be an abuse of discretion for court to deny the agreement of the parties to proceed with the jury of less than twelve i would say suggest the answer to the pressure question is probably yes because it's the reliance on the committee counts is the court in the respondent did not there isn't the court said or the committee comments are just for guidance there persuasive authority but they support our position because the communication said that there was no intent t actually kept referring to the language of the requirement of agreement scuderi in concurrence of the court as dicta however if you read the whole thing it's absolutely abundantly clear that the court was talking about a proper waiver and what's necessary for proper river the court said it must follow that if the laws of the state provided the fund in a criminal case to stipulate on on a waiver of his right to trial by an entire jury he may also with equal effect waive one or more jurors and enter into a stipulation with the people where by he and the people with the trial court agree in consent to the trial proceeding with the jury composed of less than twelve months that is the rule this could ery that is the rule that's been followed to correct your honor so how is that different from this it's really just as garmin in people actual daily versus joyce this court said that the defendant has an absolute right to wait and look at the historical law practice in historical the history of the right that inherent in the right to trial by jury is the right to waive a trial by jury and this is not affected by the position that we've taken the right to waive a jury is saying the composition of a jury we have no right to dictate whether or not a defendant weighs a jury and i'm sure ventral we also have the right as the defendant has no right to choose the judge who will hear his case to dictate the number of print through challenges he shall have and that's exactly what was taking place in this case the defendant and it's clear from the record he wanted to have instead of point five eight challenges proceed on a jury he did he want to have double that number one point one six and it's clear from the record that was what motivated him here that can't be tolerated by this court just forget how would it work out if case was submitted to the jury and jervy comes unavailable and it's a situation where the judges or state as the defendant are you willing to proceed with less than twelve jurors and in the defenses yes i am in the state then veto then even after the throw under the under the case law un current existing case law the people could say we have jacked we do we prefer to have a jury of twelve and the reason they didn't it is could make a determination whether they felt the case went well or didn't go well of course those are all factors that are not before this court but i would ask the court to look at the history of this right and what has taken place over the years the reason in one thousand nine hundred five you provided in general assembly provided for the selection of alternates was this precise problem the right of a jury the one the quote unquote agreement was entered into the record and the agreement was not in agreement with the court the agreement was with the state the court sought the assurance from the state that they had no objection and the sure instance from the fence counsel that they had no objection to proceed with the case that's why we have alternate to just those questions and it's a mistake not to select alternates in virtually any case but especially when the stakes are high like this case existence of  waiver the court said no the court said the power to waive does not give rise to the power to dictate the number of jurors not some house you know mr jacobs who is representing the defendant at the trial level who have great respect for also misread aaronson suggested to the court that ernst says quote the court has the discretion to law my client have a jury of less than twelve that's not what ernst no case says that there is no authority for this the trial record again i would urge the court to to look at the trial record these situations the court misinterpreted all of these cases and said these situations deal with situations where the defendant was bombed by is agreement but they do not hold the defendant was not title to jury less than twelve if the state did not agree well you only get to a jury of less than twelve if the state doesn't agree all those cases were evaluating whether or not there had been a proper waiver  every single one of those cases referred to the rule in scary that there had been an agreement by the state and the defendant and therefore the proper waiver were there is not as in matthews where it was not clear on the record that the defendant the green from the state the agreement means an understanding with the state it doesn't mean a unilateral choice of the define it or it's some kind of an agreement with the court were the courts as would like a jury of six or twelve or seven or eight it's it's a jury florida that the cases clearly not just in illinois but across the country reflect the fact that that decision is left to the legislature how many jurors will sit in criminal cases this decision for the legislature and for the  stronger but they said it was not reversible error to do otherwise would be error as all of these cases suggested dockery completely misread he also and his reading the case simply ignores the rational analysis on a historical precedent that of the court enters discussed they said the ability to waive does not give rise to the power to dictate the number of jurors they said that the defense initially his argument had some appeal however they rejected that it does not withstand fulcher scrutiny i suggest to the court that the defense position here the response position here does not withstand closer scrutiny the law in this is an important scuderi was the law joyce supports our position people excell the person's choice the composition of the jury again this is an important point is well that as this court recently said in the marker case the truth seeking function of a trial deserves to be given precedence justice belongs not only to the defendant but to the people as well the composition of a jury is important to the people of the state of illinois that's why the illinois general assembly said a jury shall consist of twelve members that's why the framers of our one nine hundred seventy constitution said that the right to trial by jury heretofore enjoyed shall remain viable and it should not be tampered with by any judge in any courtroom absent an agreement of the people the state has the same right to number a printer in challenges that reflects the fact that we do have an interest in the selection process and just the number of jurors but the selection we have a right to challenge jurors requires the people are an interested party we are not bystanders in his promises and i would suggest to the court to that the pride the party any party whether it's a civil case  criminal case in this case the people of the state of illinois to voice in the composition of the jury violates the rules that have been in place for well over one hundred years and his case after case suggests if you diminish the number of jurors threatened very fabric of the jury system reaching a fair result of a healthy exchange of ideas the fair question requirement smaller jury certain constitutional principles that led to the establishment of the si thresholds that's in a case the defendant cited birth versus louisiana you double the number of primary challenges leading to the grief possibility you going to have errors in the record and an impartial jury selected we suggest to the court  procedure or in the common law for this circumstance except for the rule in scuderi were both parties in interest have a say in whether or not we will agree to a jury of less than twelve the rule keep in mind develops as as a rule of judicial economy to address situations where your intent is to select a jury of twelve but because of on some unforseen circumstances and up with a jury of ten or eleven and then  that's how that will develop is nothing to do with some inherent right of the defendant to waive the number or the court's discretion to allow him to waive the number that's a rule of judicial convenience and i would ask the court to take a look at it for rule of criminal procedure rule twenty three which is a been upheld as constitutional constitutional in our federal constitution which also requires an agreement from the state if you can proceed to a jury of less than full again mandamus is necessary in order to avoid disorder and confusion we were specially request that this court is room to rid of the defense request for a jury of less than twelve and promptly impanel a jury of twelve jurors to hear this case and if i'd be happy as many of the questions for how it seems to me that bars those stations we have honor my obviously i all my systems walk in my shoes and in traffic cases dui cases where the parties agree the defendant does not want a judge or that particular judge for whatever reason to hear his or her case and so he will discuss with the state would you be willing to waive a jury of twelve and slick six s the court said the united states supreme court said we first for the you know the thing the number of jurors should be up to the legislature federal level up to congress i don't disagree with the court that there are some there are some appeal to it however when you start doing that it should be done through a process through the legislature and there should be rules that gu jurors you go to really threaten the heart of the jury system and our legislatures determine that the best results are cheats with a jury of twelve and the reason we've objected is because that is the law the  criminal procedure section one fifteen ish for b says a jury shall consist of poll numbers and historically the only cases and there has been only one case in our jurisdiction where a judge overrode it and i was not there other wi who had been here on this case i was not advised of i take this very seriously and i agree with the court i'm willing to assist this court i would encourage the court to take a look at federal rule twenty three and determine whether or not in your room making the food you want to kind of by the principals in school terry and encourage the use of a lesser number in appropriate cases i don't think it should be allowed in any felony case i do not believe it should be allowed in any felony case  lesser numbers are more likely to convict there's you know those are arguments that are cited in the supreme court cases and velo in churches and i don't disagree with that i do think and i do believe in in this case obviously our objection was based not not just on a number but also the fact that the defendants going to get you know one point one six punch for every potential juror and i also agree well within  a jury of six threatens the underpinnings of the right to jury trial and the under the the cases cited by the responded in their brief they acknowledge that and they also acknowledge that you can have a jury of six but it must be unanimous juries of five i don't call it under the constitution so this is a very slippery slope and dangerous territory we should not go there  court the trial work could i mean it could be a situation for example where a judge dockery could say i'm not going to let you reduce the number of jurors to six because of the situation in such as for example presented  people really fun where if a juror becomes unable to serve after the jurors have retired to deliberate you have a constitutionally deficient number of jurors so that you couldn't proceed to a verdict so i there is some play within that amount and it's left to the discretion of the judge in fact i find it it's very interesting in this case that in the trial court in this case the state's attorney never never at any point gave any reason for its objection to the judge allowing the defense to proceed with less than twelve jurors and if it's left to the discretion of the judge the judge in this case exercise his discretion and said that i'm allowing this because it's a timely request it was made pretrial and there's no prejudice to the state the state never responded to that significantly i think the state has not responded to the problem of i think it's position actually in this case and in every case i guess where the family is seeking less than twelve jurors its position is that not only does the state have the right to control the manner in which the defendant exercises his constitutional right to a jury but also that the state has the right to control the manner in which the judge exercises his discretion so that if for example a judge as justice freeman alluded to earlier a judge says i think in this circumstance this is a case where i think it's appropriate to go with six jurors it's cost efficient it costs the county last it'll take less time and i don't see any prejudice to the state from this defendant has an unbridled right away but you're all together and it's part of that we look at the cases that the case decided that it's because of the historic research perspective of the waiver a jury by a defendant the state of illinois right correct is there any independent historical evidence that suggests that the father has a right to a jury of less than twelve we understand the argument that ties them together but do we have any series of cases or rulings or whatever that show a similar historical right in a defendant in this case the way to marshal here to insist on less than twelve in our state right well i would say and specifically in the instance of a jury that has gone through a trial and there's been they've retired for deliberation which is that people feel a fund situation say there are no alternate surveillance on one juror becomes unable to serve i think in their cases it's really not looking for a similar historical background for this point of law that we found in the waiver of a jury all together treating them as two different things one is a waiver or three one is a partial waiver right there is no such historic background in the area for four or five years for less than twelve no on the other hand the u s supreme court has stated that of a jury under the federal constitution can consist consist of no less than six and there can be any number between at and twelve to kind of i mean there jerry there's there's there's no question that even in this case if there was an agreement between the parties and the judge approved that agreement a jury a jury of six or more would be acceptable correct right so that's not at issue before now at issue is whether the defendant has the right independent of the state's wishes to waive a partial or to have a partial  two principles differ in that area as well well they were actually in one of the cases that was cited in the respondents brief people v birdies the court did say that treated its analysis of whether the defendant could waive twelve jurors as igs essentially the same analysis as whether the defendant could wave a jury all together and that was i think i mention people bieber is but at the other thing isn't people here and some in the state is saying that their case addresses it and rules against the defense actually in people variance what the defendant was claiming in that case was that he had an absolute right to a lesser number of jurors and that the judge had no say over that if he chose to go with less or that less than twelve the state had objected in the case but the appellate court did not say in holding that the trial judge properly denied the twelve less than twelve the court did not say the trial judge was correct in denying the defendant's request because the prosecution objected the court said the court acted properly because the defendant does not have an absolute right to go with is there is no discretion and unless there is agreement by the state well that's that is the state's position and i don't believe i believe there's any case that the state has cited that says scuderi which the state is also relying and i think it's important to note that in skin terry at the time and i discussed that in my brief but at the time scuderi was decided the government had a right to a jury trial so if the government and the defense both have a right to twenty years ago and people like for all daily the jury's that the government does not have a right to a jury trial and i'll annoy in the federal law the government can prevent a waiver there's no right to a jury trial or to go to waive a jury trial in federal court so of course the government has to say that and if the defense wishes to waive a jury or to proceed with less than twelve because there is no federal constitutional right to a bench trial criminal defendant  the criminal comes to the federal constitution references not only the accused right to a jury trial but the right of the people to a jury trial our state constitution references that right only with respect to the defendant which is how this court came to its conclusion in people extra daily joys that the state has no right to a jury trial and has no right to force a jury trial upon me defend serious problem with the states are you minute is still has not answered how its position is consistent with the double jeopardy protections that are ported to a defendant and again take the situation in people the lafond in that case the jury retired one of the jurors became unable to serve the defendant in that particular case decided he would not waive his right to a twelve person jury so in that instance the judge had no other alternative but to declare a mistrial because the defendant wouldn't proceed with less than twelve jurors but the opposite side of the coin the state is saying that if the defendant were willing to waive his right to go with twelve jurors and proceed to a verdict with less than twelve jurors that the state could prevent that from happening and insist that the defendant go through a new trial because the state is not willing to proceed to a verdict with less than twelve jurors and part of the big part of the double jeopardy protections afforded to a defendant is the right to proceed to a verdict after one trial with the jury that's been selected so i can't understand how the state in that kind of instance can't assert that it has a right to prevent the defendant's waiver of twelve jurors and forced to defend an essentially to go through a second trial what the state is asking again and in this case and in fact cited in its reply brief and cited here this morning that argument citing the federal rule of criminal procedure it seems that the state is asking that this court adopt federal rules in practice and i as the birkhead doesn't dispute there's a difference between the federal constitutional right to jury and the state constitutional right to a jury the state doesn't have a jury trial right and illinois in criminal cases a federal jury is satisfied by six persons what i think one fifteen four b does is how defy the defendant's constitutional right to jury so a defendant in any particular case can insist on a twelve person jury and the state can't force him to go below that number the court can force him to go below that number and that's what happened in people feel a fund we're not asking in this case that a defendant be granted his request in every instance there  judge in the exercise of his discretion could make a decision that a twelve person jury is more appropriate the judge could look at the factors the judge looked at in this case the timing of the request whether there's any prejudice to the state the nature of the charges against the defendant the nature of the penalties there may be a situation where it's highly publicized case a highly notorious case the u s supreme court in and its cases recognize that a twelve person jury might be preferable in instances where it's a highly publicized are notorious case or serious instance where the twelve person jury is more free from any possibility of outside influence or intimidation but these are all factors that go into the trial judge's discretion as to whether or not to grant the defendant's request in this case mr prolific asked permission from judge dockery the judge considered the request granted the request exercise its discretion in doing so and in fact i believe in the trial court this is the state's attorney in response to a question justice thomas you had asked earlier is this in state's attorney in this case agreed that even if this read to less than twelve persons that it was still within the discretion of the trial judge as to whether to grant that request or not to go below the constitutional guarantee of twelve jurors so if in the church the state in this case has has acknowledged that there is discretion in the trial judge even in instances where the states agree and in this particular case the state has not really articulated on what grounds it is being prejudiced by the judge's exercise of its discretion the state doesn't have any right to a mandamus action where the judge is exercising his discretion and we would ask that your hon the response of argument again provides no support for the position that they've taken here stated that the state's attorney never gave any reason clearly the reasons are lengthy there in the record we filed a written objection we learned the day before the trial that the defense was going to ask for jury of six and we f written objection there's a lengthy argument both in the am before judge doctor even read the ernst opinion and then an afternoon session there's a lengthy record so we did state the reasons for our judgments and we went through the history of the right and why the court has no discretion to grant a request for a jury not less any is any part of your argument an argument that there was an abuse of discretion here an argument that wouldn't insist that there wasn't some some legitimacy to the claim of the defendant that he has no your honor we've got a six you know the judge had no discretion zero discretion to enter that order the people suggested that people were just were bystanders we don't really have to say that the composition of the jury is up to the defendant his choice with the concurrence or or quote the discretion of the trial court trial charged with two very serious offenses attempt home invasion an attempt on robbery and then he was on parole for murder that's what you know from the record you don't know anything about the fashion don't know what issues might arise you don't know what the reasons why every district there's no dispute zero not one district opinion there this is the uniform law in the state of illinois and every district in all the cases that the defendant cited in your brief regarding the issue of waiver those issues were raised on appeal because the funding either through his attorney or through the court through the court in in a discussion with court waived a jury of less than twelve and then raised the issue on appeal and said that his right to a jury of twelve was deprived by the trial court by a long injury of less than twelve for reach a verdict that's reason the reason why we object the interest of justice the interest of the people of the state of illinois to have a say and with all due respect to coun never articulated any rationale any factors for why he was making new or my sis in state's attorney michael paul asked the question after the judge already ruled what are the facts you relied relying on and a judge tossed in that cases create problems because we don't him in juries of twelve people objected we filed a written objection people actual daily versus choice does not in any way support the response position in fact it supports people's position because at the time this court decided people actual daily versus joyce the rule in scuderi was the law it is the law it has always been the law for more than one hundred years the people of the state of illinois have a say in whether or not there shall be a jury of less than twelve just like other rights where the people have a say the right to confront the defendant can't just force state to enter into a stipulation fund raisers to testify can waive his right through remain silent and then he has to subject himself to cross examination so there are all the other rights and this is all set up now to brief the defendants or the respondents arguments in include much speculation about double jeopardy issues again this court knows what happened in the fund the fund refused to agree and a declaration of mistrial was manifested sesa the judge double jeopardy is not involved here and the mere prospect that further issues might be raised does not this entitle the people to relief i ask this court review all the cases how many times in the last two hundred fifty hundred seventy years as the issue that they speculate arisen i can tell you how many times zero times never they want this court to overrule a longstanding precedent based upon sure and other speculation and the mere prospect of some future problem is question that under the federal constitution the state as a matter of law has a right to say whether or not he or that this is the federal government will agree to a jury do in determining what the right of the trial by jury is here for enjoy it means it means that the defendant can waive a jury trial and opt for bench for all just as or said it does not mean the defendant can waive a jury of twelve and heavy jury of six or seven or some other number means he can have a jury of twelve or way so that's the difference in also under the federal constitution and the united states  florida a jury of six can be can't pass constitutional muster under the federal constitution in illinois it's a jury of twelve those are the differences from the  record typically what occurs is there's a problem and usually it's a problem after the intent to select a jury of twelve and have jury of twelve hear the case and then there's problem at the end you lose injure or two because of a problem in a court will enter the greenman on the record and concur with the agreement in fact that every single one of these cases that's what's occurred with the exception i believe of matthew's were the case was referred believes matthew was a case was reversed because it was not clear from the record understood his right to a jury of twelve there was some discussion chambers inners there's a strong dissent in opinion as well from the court from justice who felt that the waiver was sufficient but again ernst is right on point it's not that it could not be any clearer clearer the court said the ability to waive does not give rice the power to dictate the number of jurors now the defendant can dance around it what's by saying that the court has discretion to grant the defendant's request is the same thing as saying that the defendant is dictating a number of jurors it's the same thing the court has no such discretion in earnest intrinsic question they do not say the court has discretion discretion is no were found in the opinion no where in the opinion is the word discretion used in describing what took place in the trial court again with respect to all the arguments there is no case law no authority none anywhere it is our position that the constitution of the state of illinois and our statutory structure requires a jury of