Monday, November 14, 2011

Illinois Appellate Court reverses conviction because of ineffective assistance of counsel based on conflict of interest

Last September, in a short, but well written opinion, the Illinois Appellate Court addressed the issue of whether a conviction should be reversed due to a conflict of interest.  This was the second case in which the court reversed a conviction for ineffective assistance of counsel that month.  The case is called Illinois v Dopson  and it is available here.  My comment on the other case decided that month is here.

In Illinois v Dopson, the attorney for the accused was representing two criminal defendants concurrently in separate cases.  The attorney did not know that one of these defendants was a confidential informant who provided all the information used to arrest the other client.  When the state disclosed to the attorney that one of his clients would be used as a witness against the other client, the attorney ceased to represent the client who was going to be a witness for the state.  He continued to represent the other client, though, and that client was convicted.

On appeal, the client claimed his attorney has provided ineffective assistance of counsel because he continued to represent him while he had a "per se" conflict of interest.  The court agreed.

The court started by pointing out that even though Strickland v Washington usually requires the defendant to show serious attorney error and prejudice, a showing of a per se conflict, by definition, satisfies both prongs of the test.  Operating under a per se conflict is such a serious error there is no need to show prejudice.  Reversal is automatic.

Since Illinois has decided already that prior or contemporary representation of a State's witness constitutes a per se conflict, the Court had no problem finding the case required reversal.

The State claimed there was no conflict of interest because the attorney was not contemporaneously representing the two clients at the time of the defendant’s trial. However, all that means is that the conflict went from being a concurrent conflict to a successive one. Either way, as the court correctly states, “the State’s attempt to narrow the scope of the per se conflict-of-interest rule belies its underlying purpose” which is to make sure an attorney does not find himself in a position where the attorney can’t represent the interests of one client because of his duties to another. As the court states, this “presupposes that defense counsel’s vigorous cross-examination of the State’s witness should be unhindered” by the need to protect a former client’s confidences. At the time of the trial, the attorney was prevented from attempting to elicit information obtained during that prior representation. Whether such information existed, or would have been useful to the defense, is irrelevant.

Finally, although it had stated it was not necessary to establish prejudice, the court points out that the attorney’s cross examination of his former client “was mild, at best.” The attorney did not attack her credibility or point out her possible bias.

Thus, any way you look at it, the court found the circumstances showed a clear conflict of interest which required reversal of the conviction.

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