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People v. Robinson









No. 50830. — Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Will County, the Hon. Angelo F. Pistilli, Judge, presiding. MR. CHIEF JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:

William J. Scott, Attorney General, of Springfield, and Clyde L. Kuehn, State's Attorney, of Belleville (Donald B. Mackay, Melbourne A. Noel, Jr., and Thomas C. Crooks, Assistant Attorneys General, of Chicago, and Raymond F. Buckley, Jr., of the State's Attorneys Appellate Service Commission, of Mt. Vernon, of counsel), for the People.

John H. Reid, Deputy Defender, of the Office of the State Appellate Defender, of Mt. Vernon, for appellees.

Richard J. Wilson, Deputy Defender, of the office of the State Appellate Defender, of Springfield (Donald T. McDougall, Assistant Defender, of counsel), for appellant.

William J. Scott, Attorney General, of Springfield, and Thomas J. Difanis, State's Attorney, of Urbana (Donald B. Mackay, Melbourne A. Noel, Jr., and Thomas C. Crooks, Assistant Attorneys General, of Chicago, of counsel), for the People.

These consolidated cases present the question whether alleged conflicts of interests on the part of their public defender trial attorneys served to deprive defendants of the effective assistance of counsel.

In cause No. 50830, defendant Charles Robinson and Beverly Wilder were charged, by information, in the circuit court of Will County, with the burglary (Ill. Rev. Stat. 1975, ch. 38, par. 19-1) of a tavern. Following their arraignment, Alex Bonds, a part-time Will County public defender, was assigned to represent Robinson. Bonds disclosed that in the previous year his private law firm had represented James Witt in the purchase of the tavern business allegedly burglarized by defendant. Although Bonds no longer had any professional relationship with Witt, the latter still owed some portion of his attorney's fee. After being informed by the circuit court of the possible conflict of interest, Robinson agreed to accept representation by another assistant public defender. Wilder's motion for severance was allowed.

The evidence adduced at trial showed that at about 4:25 a.m. police found defendant and Wilder, who had gained entry through a broken window, inside the tavern preparing to remove several bottles of liquor and a television set. Witt testified that as the lessee of the tavern he had not given defendant authority to be in the tavern after closing. Defendant was found guilty of burglary and sentenced to the penitentiary.

The appellate court rejected defendant's contention that a per se conflict of interest extended to all members of the public defender's staff because of Bonds' prior representation of the burglary victim, and affirmed the judgment. (People v. Robinson (1978), 59 Ill. App.3d 514.) We allowed defendant's petition for leave to appeal.

In cause No. 50901, defendants Joe Ishman and Reginald Bogay, and Sherwin Haywood, were indicted in the circuit court of St. Clair County for the murder of an employee of the P & K Wholesale House. A witness who was a customer in the wholesale house at the time of the shooting testified that three young men, two of whom were armed, entered the premises and demanded money. After a brief scuffle between an employee and one of the robbers, the robber's pistol fired, fatally wounding the employee. The St. Clair County public defender was appointed to represent the three defendants and assigned separate assistant public defenders to represent defendants Ishman and Bogay; the public defender himself represented Haywood. Ishman's motion to sever his trial because of "irreconcilable differences" in the three men's defenses was granted. A severance was also granted to Haywood, who was later acquitted.

At his trial Bogay testified that he, Ishman, and Haywood had planned the robbery of the wholesale house, but that on entering the building he decided to withdraw from the crime. Ishman, according to Bogay, took Bogay's pistol and pushed him forward. Bogay said he then fled, hearing the fatal shot as he left. As he ran toward Ishman's car, Bogay was struck by buckshot fired by another employee of the wholesale house.

Ishman, who was arrested while attempting to use a credit card issued to one of the robbery victims, gave police a statement admitting his involvement in the robbery and implicating Bogay. In the statement, later introduced at trial, Ishman said that he remained near the door of the wholesale house while Bogay, carrying a pistol, and Haywood, with a sawed-off shotgun, approached the two men inside the business. During his trial, however, Ishman repudiated the statement, testifying that he signed it only after being beaten and threatened by the police. Ishman testified that he had bought the credit card from Bogay on the street for $20 and denied any knowledge of the robbery or murder.

In separate jury trials, Bogay and Ishman were found guilty of murder and sentenced to the penitentiary. The cases were consolidated on appeal, and the appellate court reversed the convictions, remanding for new trials at which defendants were to be represented by counsel other than the public defender. (People v. Ishman (1978), 61 Ill. App.3d 517.) The appellate court reasoned that because of the defendants' adverse interests (each attempted to shift culpability to the other), the public defender could not fully exercise his independent professional judgment on behalf of each defendant. The court said, too, that the possibility of a conflict of interest was not obviated by the public defender's assignment of separate assistants to represent the defendants. We allowed the People's petition for leave to appeal.

Defendant Nick Freeman (cause No. 51044) and his co-defendant, James Winston, were charged by information in the circuit court of Champaign County with the armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2) of a bookstore. The public defender of Champaign County was appointed to represent both Freeman and Winston. He personally undertook Freeman's representation and assigned an assistant public defender to represent Winston.

At trial a sales clerk at the bookstore testified that two men, one armed with a shotgun and the other with a pistol, entered the store and ordered him to open the cash register and a display case containing change. One of the men wore a ski mask, the other a nylon stocking over his head. The attendant identified Freeman as being the robber whose face was covered by the nylon stocking. Another witness, a resident of the neighborhood where the bookstore was located, testified that he noticed an unfamiliar car in the area at the time of the robbery and saw two men run from the bookstore. The men were running in a "military fashion," ducking down, weaving and hiding. He reported to the police the license number of the car, which was later found in a trailer park. One of the investigating officers testified that a recent snowfall enabled him to track a set of footprints from the car to a shed, where he found a toy pistol and a shotgun of the type used in the bookstore robbery. The officer testified that another set of footprints led from the car to the trailer where he saw Freeman, Winston and two women. In the trailer he found a pair of shoes which matched one set of footprints. The shoes were damp on the bottom and had water on the edges. For reasons not clear from the record, Freeman was not arrested until two days later. The officer testified further that he read Freeman his "rights" from a "Miranda Warning Card" and while questioning him he admitted to the armed robbery but remained silent as to his accomplice's identity. Neither Freeman nor Winston testified at trial.

The jury found Freeman guilty of armed robbery; Winston was acquitted. The appellate court held that although both defendants were represented by one entity (the public defender), their defenses were not antagonistic and the errors allegedly stemming from the joint representation were not prejudicial, and affirmed. (People v. Freeman (1978), 60 Ill. App.3d 794, 799.) We allowed defendant Freeman's petition for leave to appeal.

Simply stated, the question here presented is whether the individual attorneys employed in the office of a public defender are members of an entity subject to the generally recognized rule that if an attorney is disqualified by reason of a conflict of interest that no other partner or associate of his firm may continue with the representation. (People v. Fife (1979), 76 Ill.2d 418, 425; Laskey Bros. of W. Va., Inc. v. Warner Bros. Pictures, Inc. (2d Cir. 1955), 224 F.2d 824, 826-27; ABA Code of Professional Responsibility, Disciplinary Rule 5-105(D) (1969).) Although recognizing the general applicability of the rule, the People argue that because of their significant differences from private law firms the same rule should not apply to public defenders' offices. They argue that the individual attorneys in the public defender's office owe no duty to the office, but only to the individual defendants they represent. Also, the People note, the structure of public defender offices is often dissimilar to private law offices. This State has no statewide public defender system (Ill. Rev. Stat. 1977, ch. 34, par. 5601 et seq.), and there are substantial differences in the organization of public defenders' offices throughout the State; in at least one county the "office" of public defender exists in title only, with the individual attorneys being but nominally members of the same office. In such a county, the People contend, any analogy between the public defender's "office" and a private law firm is completely invalid.

Even if an appearance of impropriety exists because of the representation of adverse interests by the public defender's office, the People continue, it is outweighed by the strong public policy favoring professional defender representation of indigents. In support of this contention are cited statistics showing that most judges and attorneys in Illinois favored a full-time public defender system over an assigned counsel system; that many Illinois attorneys assigned to criminal cases thought themselves incompetent to represent their clients and nearly all felt imposed upon; and that the 78 counties in Illinois with public defender services have committed several million dollars in salaries alone. Creation of a per se rule disqualifying the public defender's office from representing conflicting interests, the People posit, will weaken public defenders' offices, while leaving indigent defendants with often less experienced assigned counsel costing the State more.

Although this court has not previously done so, other jurisdictions have considered the question whether a public defender's office is a "firm" within the generally recognized canon which directs that if an attorney is disqualified by reason of conflict of interest no member of his firm may continue in the representation. In Turner v. State (Fla. App. 1976), 340 So.2d 132, the court held that the public defender's office of a circuit was such a "firm." In Commonwealth v. Via (1974), 455 Pa. 373, 316 A.2d 895, the Supreme Court of Pennsylvania held that the petitioner in a prior post-conviction proceeding in which the petitioner was assigned counsel who was a member of the same public defender's office which had represented him at trial did not waive the failure to assert incompetency of trial counsel. The rationale of the decision was that the law "will not assume that counsel has advised his clients of his inadequacies or those of his associates." Legal aid societies and similar public service offices have been held, for the purposes of determining whether there were conflicts of interests, to be similar to a private law firm. (Estep v. Johnson (D. Conn. 1974), 383 F. Supp. 1323; Allen v. District Court (1974), 184 Colo. 202, 519 P.2d 351; Borden v. Borden (D.C. 1971), 277 A.2d 89; State v. Stevenson (1978), 200 Neb. 624, 264 N.W.2d 848; Commonwealth v. Westbrook (1979), 484 Pa. 534, 400 A.2d 160.) In Borden, both parties in a divorce suit were represented by attorneys from the same legal aid office. Holding that representation of adverse interests by members of the same office was improper, the court found that "Lawyers who practice their profession side-by-side, literally and figuratively, are subject to subtle influences that may well affect their professional judgment and loyalty to their clients, even though they are not faced with the more easily recognized economic conflict of interest." (277 A.2d 89, 91.) The court concluded that it was "reluctant ever to make an exception from the professional norm for attorneys employed by the government * * * because then we might encourage a misapprehension that the special nature of such representation justifies departure from the profession's standards. We should always avoid any action that would give the appearance that government attorneys [footnote — indicating that this included the public defender — omitted] are `legal Hessians' hired `to do a job' rather than attorneys at law." (277 A.2d 89, 92-93.) Although Borden did not involve, as do the present cases, the additional considerations required by the constitutional right, both Federal and State, to effective assistance of counsel, the court's analysis is equally relevant here.

Further support for the position that no distinction is to be drawn between attorneys in private practice and those employed by the State is found in the American Bar Association Standards Relating to the Administration of Criminal Justice. Section 3.9 of the ABA Standards, The Defense Function (1971), provides that "once a lawyer has undertaken the representation of an accused his duties and obligations are the same whether he is privately retained, appointed by the court, or serving in a legal aid or defender system."

In support of their position, the People cite People v. Wilkins (1971), 28 N.Y.2d 53, 268 N.E.2d 756. The New York Court of Appeals there held that the New York City Legal Aid Society's representation of both the defendant and, by a different attorney and in an unrelated criminal trial, the complaining witness, did not deprive defendant of the effective assistance of counsel. The size of the legal aid society (it employed over 150 lawyers for criminal defense alone), the court said, made it unlikely that, as in a law firm, information concerning clients flowed freely within the office; consequently, the court would not impute knowledge from one attorney in the society to another. The court added that because the defendant had not shown his attorney was inhibited or restrained during trial, it would not infer prejudice.

Insofar as Wilkins was predicated on the absence of prejudice to the defendant, it has no relevance to these cases for the reason that this court has held that when a defendant's attorney is burdened with a conflict of interest, actual prejudice need not be shown. (People v. Stoval (1968), 40 Ill.2d 109.) To the extent that the decision in Wilkins was premised upon the size of the agency providing legal services, we do not agree. A number of private law firms now employ literally scores of attorneys, yet it could not seriously be contended that a law firm of such size could properly represent adverse interests in a single case. Also, as we have already indicated, great discrepancies exist in the size and organization of this State's public defender offices. They range from the Cook County public defender's office, with nearly 300 full-time attorneys, to many smaller offices employing only a few full- and part-time lawyers. While it might be possible to distinguish, as was done in Wilkins, an office like that of the Cook County public defender from private law firms, smaller public defender offices like those in the present case are, structurally and quantitatively, similar to private law firms composed of a senior member and one or more salaried associates.

The People's conclusion that attorneys in the public defender's office have no allegiance to their office has been implicitly rejected in People v. Smith (1967), 37 Ill.2d 622. In Smith the defendant had been represented at trial by an attorney from the public defender's office. After his conviction, the defendant filed a pro se petition alleging that his trial counsel was incompetent; another attorney from the same office was appointed to represent defendant in the post-conviction proceedings. Although the court restricted its holding to the circumstances present in that case, in finding a conflict of interest it was nonetheless acknowledged that an attorney from the public defender's office might feel some loyalty to the office since the attorney's "natural inclination would be to protect its reputation by defending against the charges of incompetency * * *." 37 Ill.2d 622, 624.

Upon review of the authorities and consideration of the diversity of organization of the offices of the public defenders, we conclude that the avoidance of conflicts of interest which result in failure to provide effective assistance of counsel does not require us to hold that the individual attorneys who comprise the staff of a public defender are members of an entity which should be subject to the rule that if one attorney is disqualified by reason of a conflict of interest then no other member of the entity may continue with the representation. In many instances the application of such a per se rule would require the appointment of counsel with virtually no experience in the trial of criminal matters, thus raising, with justification, the question of competency of counsel. Balanced against this is the possibility, in most instances quite remote, that an experienced member of the public defender's staff might labor under a conflict of interest because another member of the staff was so burdened. We find apposite the commentary to the American Bar Association Standards Relating to the Defense Function (Standard 3.5, Conflict of interest) which states:

"The basic rule which must guide every lawyer is that his total loyalty is due each client in each case; and he may never permit the pressing of one point or one case to be guided or influenced by the demands of another case. The risk of jeopardizing other cases, if it in fact exists, presents a conflict he must resolve in such a way that his immediate responsibility is faithfully discharged. This problem is one of the arguments frequently made against the desirability of a full-time defender agency. Those who have studied voluntary and public defender offices have concluded that the inbred adversary tendencies of the lawyers are sufficient protection. See Special Comm'n of the Ass'n of the Bar of the City of N.Y. & the Nat'l Legal Aid and Defender Ass'n, Equal Justice for the Accused 61, 71, 74 (1959). In the sphere of private representation and in institutionalized prosecution offices many of these risks are present in some degree. Here, too, the innate competitive instincts of an advocate and the integrity of the bar is society's protection." ABA Standards, The Defense Function. Commentary, at 212-13 (1971).

In our opinion the decisions of the Supreme Court and this court (see Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457; Holloway v. Arkansas (1978), 435 U.S. 475, 55 L.Ed.2d 426, 98 S.Ct. 1173; People v. Stoval (1968), 40 Ill.2d 109; People v. Kester (1977), 66 Ill.2d 162; People v. Berland (1978), 74 Ill.2d 286; People v. Vriner (1978), 74 Ill.2d 329) furnish guidance adequate to avoid conflicts of interest which will impede the furnishing of effective assistance of counsel.

We turn now to a consideration of the facts and circumstances of these consolidated cases.

In cause No. 50830 the conflict of interest arose because the public defender assigned to represent defendant Robinson had previously represented James Witt, the People's witness who was the lessee of the tavern which defendant was charged with burglarizing. Under these circumstances there arose "the possibility that the attorney might be subject to subtle influences which could be viewed as adversely affecting his ability to defend his client in an independent and vigorous manner." (People v. Kester (1977), 66 Ill.2d 162, 167.) In a case involving an assigned counsel's representation of both the defendant and the theft victim, the Court of Appeals for the Fifth Circuit stated:

"The victim of a crime is not a detached observer of the trial of the accused, and his `private attorney' is likely to be restrained in the handling of that client/witness. In a similar case, the court observed: `It takes no great understanding of human nature to realize that the individuals who have been burglarized might be less than happy and might go so far as to remove the attorney from their good graces if this defendant were acquitted or received a light sentence or were placed on probation.' United States v. Myers, E.D. Pa. 1966, 253 F. Supp. 55, 57." Castillo v. Estelle (5th Cir. 1974), 504 F.2d 1243, 1245.

Although Witt's testimony merely confirmed that the tavern was in a normal condition when he left, that he had not given defendant permission to be inside the tavern, and that a television set had been moved from its customary location, it is unnecessary for a defendant to show that his attorney's conflict caused him actual prejudice. (People v. Stoval (1968), 40 Ill.2d 109.) It therefore seems clear that had Bonds continued in the representation of defendant, a conflict of interest might have existed which, absent other circumstances, could deprive defendant of his right to effective assistance of counsel. See generally Annot., 27 A.L.R.3d 1431, 1438-40 (1969).

United States v. Jeffers (7th Cir. 1975), 520 F.2d 1256, cert. denied (1976), 423 U.S. 1066, 46 L.Ed.2d 656, 96 S.Ct. 805, cited by the People, is not apposite. The defendant in that case was represented by an attorney whose firm had represented a prosecution witness in an earlier criminal trial. In holding that the defense counsel's dual representation did not constitute a conflict of interest, the court of appeals emphasized that the case did not involve "an existing personal relationship" between the attorney and the prosecution witness. (520 F.2d 1256, 1263-64.) By contrast, in Robinson the relationship between attorney and client was active in that at the time of defendant's trial the prosecution witness still owed legal fees to the assistant public defender.

The People contend that if any conflict of interest existed by reason of defendant's being represented by another assistant public defender, it was knowingly and intelligently waived by defendant. The record shows that immediately before Robinson and Wilder were to be tried, the circuit court informed them of Witt's expected testimony and of his previous representation by Bonds. The consequences of the possible conflict of interest were also explained:

"THE COURT: See, I want it crystal clear to you that I don't know what this witness is saying is true or false or anything else but I want the lawyer that represents you to be free to tear him up like hamburger, rip him off, make a liar out of him if he can do so. Do you understand that?


THE COURT: I want him to be completely free and have no — I don't want him to hold back anything in your behalf, do you understand that? So, we have all agreed that we will not let Bonds serve. But the question is whether you'd have any objection to Mr. Andreano getting another Public Defender and this one being a full time one. Not no connection with Bonds, his only connection would be that he also works for the Public Defender's office but he's a full time man in the office. Do you understand that, Mr. Robinson?


THE COURT: Do you have any objection to this other man being ...

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