The Illinois Supreme Court heard an interesting oral argument today involving an allegation of ineffective assistance of counsel based on the fact that the attorney did not advocate for a position in favor of the client (defendant in a misdemeanor case). One of the things that make the case interesting is the unusual circumstances that gave rise to the appeal.
At some point during the process, the prosecutor asserted a "bona fide doubt" as to the fitness of the defendant to stand trial. Counsel for the defendant did not object. Based on the state's statement, the court ordered an evaluation of the defendant. On appeal, the defendant (represented by a different attorney) is now claiming that the trial counsel was ineffective because he did not object to the state's argument of unfitness.
During the oral argument, the justices ask good questions about whether the decision on what position to take as to the fitness of the defendant is one for the defendant or the attorney; whether it is strategic or substantive, etc. In part, defense counsel argued that the decision belonged to the client because it involved more than mere "tactics." Because this was a misdemeanor case, a finding of unfitness could result in the defendant remaining confined for a longer period of time than if found guilty. Thus the decision on what position to take as to the fitness of the client affected the ultimate goals of the representation. For that reason, the defendant is arguing that the attorney's failure to take her position that she was fit constituted ineffective assistance of counsel. In contrast, the state argued that although the attorney may have had a professional responsibility duty, the failure to object did not amount to a violation of the right to effective assistance of counsel.
Another issue discussed by the parties is whether there was a need to request a guardian ad litem and whether the decision in Austin M., a case I have written about, applies to this case.
You can listen to the audio of the oral argument here or watch the video here.
