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United States v. O'Leary

decided: November 24, 1986.

UNITED STATES OF AMERICA, EX REL. GEORGE DUNCAN, PETITIONER-APPELLEE,
v.
MICHAEL O'LEARY, WARDEN, RESPONDENT-APPELLANT



Appeal from the United States District Court for the Central District of Illinois, Danville Division. No. 84 C 2368 -- Harold A. Baker, Chief Judge

Author: Cummings

Before CUMMINGS, EASTERBROOK and RIPPLE, Circuit Judges.

CUMMINGS, Circuit Judge.

This case comes to us on appeal following the district court's grant of petitioner George Duncan's ("petitioner's") petition for writ of habeas corpus. For the reasons set forth below, we affirm the decision of the district court.*fn1

I

The facts as developed in state post-trial proceedings and the district court's habeas evidentiary hearing are largely as follows: Petitioner was indicted February 19, 1980, for the murder of his girlfriend, Yvette Searle. Initially, petitioner retained Thomas Penn as defense counsel, and petitioner's family paid Penn a fee of $6,000. In April 1980, the family discharged Penn, apparently because Penn insisted that petitioner plead guilty to the murder charge. Petitioner thus needed a defense attorney.

Subsequently, Chris Duncan, petitioner's brother, had occasion to be patrolling on Western Avenue when he saw Assistant State's Attorney Joseph Gibson, defense attorney Dorian LaSaine, and police officer Patricia Bonacum standing outside Gibson's residence. Duncan stopped to talk to Gibson, and LaSaine then joined the conversation. The subject of petitioner's defense and his problems in selecting an attorney arose, and LaSaine told Duncan to come see him about the matter.

LaSaine, Gibson, and Bonacum all played roles in the events that followed. During this time period Gibson was running for State's Attorney of Peoria County. LaSaine and Gibson were close friends and were classmates together in law school. LaSaine was Gibson's campaign manager for this race and continued in this role during petitioner's prosecution which was conducted by Gibson. Gibson's campaign was based upon a "strong law and order" theme, and as such LaSaine and Gibson had publicized a prior murder trial where Gibson had sought the death penalty.

Following the discussion outside Gibson's house, Duncan went to see LaSaine about representing petitioner. LaSaine requested a fee of $7,500 for the case. Petitioner's family decided that this was more than they could afford, and continued to search for an attorney. Norval Hodges was then retained by petitioner for $5,000, with only $1,000 due before the trial.

Several days after petitioner retained Hodges as defense counsel, Duncan encountered Bonacum at the Peoria police department. Bonacum brought up the subject of petitioner's defense. Bonacum told Duncan that Hodges was not an effective attorney, that he was not known at the courthouse, and that he was "old fashioned." Bonacum further told Duncan that Hodges was trying to get information from the Coroner about petitioner's case when all he had to do was look at the police reports. Bonacum knew both that Hodges was petitioner's attorney and that Hodges was at the Coroner's office as part of his work on the case because her fiance Gibson had previously given her this information. Bonacum then suggested to Duncan that he discuss petitioner's defense further with LaSaine.

Duncan admitted that he never told Duncan that he was Gibson's campaign manager. LaSaine was not sure whether he had informed petitioner of this fact.

On the day of trial, the court and petitioner engaged in the following colloquy:

THE COURT: Mr. Duncan, I have been advised that your attorney, Mr. LaSaine, is a campaign manager for the Assistant State's Attorney in this case, Mr. Gibson. Mr. Gibson was running for the office of State's Attorney in the November election, and your attorney, Mr. LaSaine, apparently, is his campaign manager, which means that he would be working on behalf of Mr. Gibson in his election.

DEFENDANT DUNCAN: Yes, sir.

THE COURT: Do you understand that?

DEFENDANT DUNCAN; Yes, sir.

THE COURT: has Mr. LaSaine told you that?

DEFENDANT DUNCAN: Yes.

THE COURT: All right, And I believe it will be my duty to advise you, Mr. Duncan, that there could arise a possible conflict of interest in Mr. LaSaine's representing you in this case. I'm not saying that it is present nor that it would arise, but I have to make you aware of the fact, and I think Mr. LaSaine has already. But I have to make you aware of the fact that there could be what is known in law as a potential conflict of interest in his representing you in this case, a conflict of interest ...


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