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People v. South





APPEAL from the Circuit Court of Sangamon County; the Hon. BEN K. MILLER, Judge, presiding.


The public defender represented defendant.

Conflict of interest under these facts?

No — we affirm.

South contends on appeal that he was denied the effective assistance of counsel because he was represented by the Sangamon County Public Defender while his alleged accomplice (who pleaded guilty and testified against South) was represented by an Assistant Public Defender of Sangamon County. Because this representation gave the appearance of a conflict of interest, the defendant maintains his conviction must be reversed.

We disagree.


• 1 In Sangamon County there is a designated "chief public defender," but he does not exert any supervisory control over the other eight assistant "public defenders" other than assigning the days that a public defender will be appointed the cases of the defendants arraigned on that day. He interviews the applicants for the assistant public defender positions and gives his recommendation to the presiding judge of the Criminal Division, but the circuit judges vote on who will receive the appointment to the positions. At one time he required the assistant public defenders to file reports indicating the number of cases they were appointed for each month, the amount of time spent on each case, and the disposition of each case, but this practice was stopped.

The public defenders in Sangamon County are solely responsible for their own cases. They do not appear for each other, discuss cases among each other, or exchange files with each other. Cases involving multiple defendants and public defenders are handled in the same fashion as cases in which private counsel is appointed. None of the public defenders have professional relationships with each other as they maintain their own private offices. They use their own respective private law firm stationery and do not have stationery designating themselves as public defenders. The only thing the public defenders share is their title and the services of an investigator. It seems apparent, then, that the office of the Sangamon County Public Defender is — in fact — a decentralized office.

In People v. Spicer (1978), 61 Ill. App.3d 748, 378 N.E.2d 169, our sister court held that a per se conflict of interest existed in the representation of defendant and a co-defendant by two separate assistant public defenders in a public defender's office. The defendant's counsel was charged with a commitment to the co-defendant by virtue of his affiliation with the office of the public defender. The court stated that the case must be viewed as though both defendants were represented by single counsel because when the public defender is appointed for an indigent in a criminal case, it is the office of the public defender that is appointed. The assistant public defenders discharge the duties and obligations of the public defender, but the public defender remains responsible for the acts and conduct of his assistants. The court also noted that representation of defendants with possible conflicting interests by separate assistant public defenders casts a shadow on the loyalty of counsel.

However, the evidence in the case at bench clearly indicates that the defendant received vigorous representation by his counsel without the hint of any division of loyalty. The assistant public defenders were independent from the public defender and each other. They shared neither offices nor information and were responsible for only their own cases. Not only were they decentralized, they were apparently related in name only.

Defendant asserts that the use of the common investigator by the public defenders and his use of cards identifying himself as the investigator of the office of the Sangamon County Public Defender creates the appearance of a single office. We view this as a de minimis factor. Although the Illinois Supreme Court in People v. Knippenberg (1977), 66 Ill.2d 276, 362 N.E.2d 681, found it was error for the State to use privileged communications between the defendant and the defense investigator, there was no breach of the attorney-client privilege in this case. No actual conflict of interest arose regarding the use of the investigator since South's attorney used the investigator to determine whether the co-defendant was going to testify against South and the co-defendant's attorney did not use the investigator for any purpose whatever. Furthermore, the investigator only reported to the public defenders who asked for information and then only that information which they had requested. We conclude that the investigator's limited involvement in this case did not create an appearance of conflict.

The dissenting justice contends that the "centralized" versus "decentralized" distinction is nonexistent. Although we recognize that the distinction was not created by the legislature, we are examining the office as it is and not as it should be. In fact, the Sangamon County Public Defender's Office which manifests the distinction could well be operating contrary to the law. However, the legality of that office is not presently before this court. The only matter that is before us and is at issue — raised for the first time on appeal — is whether South was denied the effective assistance of counsel.

The docket order recites "Attny. James P. Fox appointed as counsel for defendant South." The appointee was a duly licensed attorney and an assistant public defender. If his appointment as an assistant public defender was not valid, that would further indicate his independence. Since, in our view, neither an actual conflict of interest nor an appearance of conflict exists in this case, that issue is answered in the negative. By so holding we are not advocating the reorganization of public ...

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