By:  John M. Fitzgerald

In less than two years, Justice P. Scott Neville, Jr., has already left his mark on the Illinois Supreme Court.  In the opinions he has authored since joining the Illinois Supreme Court in June 2018 — his opinions while serving on the Illinois Appellate Court, First Judicial District, may be the subject of another article — he has consistently demonstrated a passion for protecting the constitutional rights of criminal defendants.  A few significant examples are highlighted below.

In People v. Buffer, 2019 IL 122327, Justice Neville authored an opinion for the Court which held that a 50-year murder sentence imposed on a then-16 year-old defendant was a de facto life sentence in violation of the Eighth Amendment.

Writing for a divided court in People v. Murray, 2019 IL 123289, Justice Neville reversed the defendant’s conviction for unlawful possession of a firearm by a street gang member, finding that there was insufficient evidence that the Latin Kings were a street gang for purposes of the Illinois Streetgang Terrorism Omnibus Prevention Act.  Justice Neville’s opinion in Murray is notable for its discussion of the standards for the admissibility of expert opinion testimony in a criminal trial.  Justice Neville found that, while the state’s gang expert generally discussed the State’s gang database, the expert failed to establish a sufficient connection between the database and his conclusion that the Latin Kings were a street gang.

In a partial dissent in People v. Clark, 2018 IL 122495, Justice Neville disagreed with the Court majority’s holding that the Public Defender Records Automation Fund fee was a fee instead of a fine.  His partial dissent stands out for his invocation of the rule of lenity, which generally holds that an ambiguous statute should be construed in favor of a criminal defendant.

In a dissenting opinion in People v. Kimble, 2019 IL 122830, Justice Neville disagreed with the Court majority’s holding that a defendant’s right to a fair trial was not violated by the trial judge’s ex parte comment to deadlocked jurors.  He believed that double jeopardy barred the defendant’s re-prosecution.

Finally, his special concurrence in In re N.G., 2018 IL 121939, should be studied by any law student who intends to pursue a career in the criminal justice system.  In that case, a father’s parental rights were terminated due to his conviction for violating a statute that had, in another case, been held facially unconstitutional.  Although the statute had been held unconstitutional in another case, the father never obtained a court order in his criminal case vacating his conviction.  The issue in N.G. was whether the father’s parental rights could be terminated on the basis of a conviction that, while based on an unconstitutional statute, had not been vacated.  The majority held that the father was not required to first obtain an order in the criminal case vacating his conviction; because his conviction was void, it could not be used as a basis to terminate his parental rights.  Justice Neville authored a special concurrence in which he argued that everyone, particularly prosecutors, have a responsibility to correct illegal convictions.  Here is the key language:

• “But it is manifestly unfair to hold defendants exclusively responsible for vacating a void conviction. This approach places an onerous burden on lay defendants who are the least equipped to undertake that burden because they lack legal skills and do not know how to navigate the legal system. The dissent's approach would allow a void conviction to remain on the record of this defendant and all other similarly situated defendants. That result cannot be tolerated in a well-ordered system of justice. . . . In my view, the burden of correcting an illegal conviction must be borne by all of the participants in the criminal justice system."
• "I reject the notion that the burden of correcting a void conviction falls exclusively on the defendant. Rather, the State should be required to undertake that responsibility. Where a court—at any level—has notice that a defendant's conviction is void, that court has an independent obligation to vacate and expunge the void conviction. In addition, the state's attorney in each county should commence proceedings to vacate and expunge all void convictions that were predicated on a statute that has been declared to be facially unconstitutional. In my view, the aforementioned remedies can be used by criminal justice participants to return illegally convicted defendants to their preconviction status."
• “I also encourage the state's attorney in each county to commence proceedings to vacate and expunge any illegal convictions based on a facially unconstitutional statute. Finally, I note that the expungement of void convictions from the criminal record is necessary for all defendants who have been wrongfully convicted to receive complete justice."

These are stirring words.  They remind all of us to do our part to fight injustice wherever we find it.