State Challenges Legal Authority of Appellate Court to Order Remand to a Different Trial Judge, and Loses in Case With Improper Other Crimes Evidence Admitted.

This case is relevant reading for a few reasons best summed up at the beginning:

1. The use of a subsequent drug deal between the defendant and the undercover officer is not admissible other crimes evidence as it did not help prove identity and was substantially more prejudicial.

2. Assuming that the jury should have heard about this subsequent drug sale, the fact that the defendant was acquitted at trial for that offense was relevant and admissible evidence and should have been heard by the jury.

3. Appellate counsel should look closely at State briefs for attempts to mix and match whether they have “overwhelming” evidence, which is part of a harmless error analysis, and evidence that is “not closely balanced”, which is part of a plain error analysis.

4. The Illinois Appellate Court explains why they have the power to order reassignment to a new judge other than the original trial judge.

The defendant here was charged with a series of drug transactions that all took place in the same month to undercover officers. The State went to trial on the last drug transaction first, and the defendant was acquitted after a jury trial.

Now proceeding on the second transaction, that case also involved the same undercover officer. The State moved to admit the later (third) transaction as admissible other crimes evidence, and the judge agreed over defense objection. She also would not admit defense evidence of the acquittal for that offense.

The appellate court reversed and remanded for a new trial, ordering that the new trial take place in front of a new judge. The appellate court held that the fact that the other crimes evidence was subsequent to the delivery for which the defendant stood trial meant that it did not aid at all in the State’s argument that the evidence was probative of the officer’s identification.

The appellate court also held that, assuming the evidence should have been admitted, that it was error to bar evidence of the acquittal since the issue in both cases was that of identification of the same defendant.

The appellate court held that the evidence here was not harmless, and gently chided the State for using the wrong legal standard for harmless error analysis.

This opinion was not the original opinion, but rather, one issued after the State petitioned the appellate court for a rehearing. In this petition, the State argued that the appellate court had no legal authority to order remand to a different trial judge and asked the appellate court to send it back to the same judge.

The appellate court explained its legal authority to the State, and us too. They also articulated that they did not go into detail originally to try to spare the trial judge some embarrassment, but since the State insisted, they now go into detail.

It makes it worth a read.

The case is People v. Rosado

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