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December 3, 1984


The opinion of the court was delivered by: Prentice H. Marshall, District Judge:


Petitioner, Daniel M. Zembowski, collaterally challenges his Illinois conviction of armed robbery by way of a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has moved for summary judgment. The motion is supported by the state court record, affidavits, depositions and official or business records made contemporaneous with the petitioner's state court prosecution. Pursuant to our local Rule 12(e), petitioner has submitted a statement of material facts as to which there is no genuine issue and which entitle petitioner to judgment as a matter of law. Finally, petitioner has submitted a comprehensive and articulate brief in support of his summary judgment position.

Respondents have scarcely responded to the motion. They have not filed a response under local Rule 12(f) challenging petitioner's statement of facts as to which there is no genuine issue. They have not submitted any countervailing evidentiary materials. Their responsive brief is a bare four pages of apologia.

Petitioner's motion for summary judgment is granted and the writ is issued for the reasons hereinafter stated.

On April 16, 1979, petitioner was charged by information filed in the Circuit Court for Lake County, Illinois with armed robbery. Also charged in the same information was Frank W. Kiel, petitioner's cousin. A second information containing the same charge was filed against Deborah Thomas, an acquaintance of petitioner and Kiel. Both informations alleged the robbery of Society Jewelers, a retail jewelry store in Deerfield, Illinois, on January 4, 1979. Both cases were assigned to the same judge of the circuit court.

At the preliminary hearing and thereafter, all three defendants were represented by Julius L. Sherwin, their retained counsel, who had previously represented Kiel on other criminal charges.

The State filed a written motion for joinder, which was set for hearing on July 13. Sherwin responded in writing objecting upon the grounds of antagonistic defenses. At the hearing on the motion for joinder, Sherwin presented a motion to suppress the evidence of the photographic identification of Deborah Thomas, upon the ground that a photograph used in the identification had been obtained illegally. He suggested that the motion for joinder would be mooted if the motion to suppress were granted. Ruling on the motion for joinder was deferred, the court observing that if the motion to suppress were denied, "[The] question . . . then will arise whether or not you can, if I consolidate these cases, represent . . . all three of the defendants, which is not only your responsibility, but mine, as well." Sherwin responded, "I will concede to you now that if they're joined, they'll have to have other counsel, and arrangements will be made."

On July 27, following a hearing, the motion to suppress was denied. Sherwin thereupon renewed his opposition to consolidation contending that the defenses conflicted. Thus he argued, "Let's assume they were jointly indicted, I would be in here quite appropriately, and hopefully competently, to assert antagonistic defenses, and asking for severance. They [i.e., the State] are, in effect, asking for a joinder or consolidation. I submit it would be improper."

Nonetheless the court joined the cases. During the colloquy which ensued, assistant state's attorney Fox observed, "If counsel feels that there's possibly an antagonistic defense, I think he has only one choice. I think he has to withdraw. Then, there has to be shown antagonistic defenses. I see none."

Despite his repeated admissions that he could not represent all the defendants in a single trial, Sherwin never sought to withdraw, but continued to represent the co-defendants through the trial. And despite the court's acknowledgment that it had a "responsibility to make certain" that a single attorney could adequately represent the defendants in a joint trial, it failed to conduct an inquiry on that issue.

During the pretrial stages of the consolidated cases, assistant state's attorney Fox and Sherwin discussed possible plea bargains. During these negotiations Fox made an offer to Sherwin to immunize Deborah Thomas from prosecution in exchange for her testimony against Zembowski and Kiel. At this point Sherwin's conflict of interest became even more manifest. He simultaneously urged Thomas to accept the state's offer of immunity and continued to represent Zembowski against whose interest he was negotiating. Even assistant state's attorney Fox advised Sherwin at this point that Sherwin had a conflict of interest.

The State also offered to enter into a plea agreement in which Zembowski would receive the minimum sentence of six years in exchange for a guilty plea, and, despite a policy against negotiating with "career criminals," a similar offer was made with regard to Kiel who, because of his extensive prior criminal record, was classified a "career criminal."

Sherwin represented to Zembowski and Thomas and Kiel (as Sherwin himself stated on the record during the subsequent sentencing hearing) that the State's plea offers were a "package deal," all of whose parts had to be accepted in order to make the offer effective. According to Sherwin, Kiel and Zembowski were obligated to plead guilty in order to free Deborah Thomas from criminal liability. However, assistant state's attorney Fox has testified in this proceeding that the plea offers were not, in fact, a package deal.

All three defendants were released on bail pending trial. Sometime near the end of 1979, Kiel fled. Because they believed the "package deal" to be withdrawn due to Kiel's absence, petitioner and Thomas felt compelled to persist in their pleas of not guilty and stand trial in January 1980.

The joint trial of petitioner and Deborah Thomas was held January 16-18, 1980. The State called as witnesses the proprietor of Society Jewelers, who identified petitioner; an employee, who identified Thomas; another employee who testified concerning the car used in the robbery and its license number; and several other witnesses. Each defendant testified in their own behalf. Petitioner testified that he was at the home of friends at the time of the robbery and his testimony was corroborated. He also testified that he had left his car in a parking lot following a blizzard on January 1, 1979, that it had been towed, that he had abandoned it ...

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