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11/23/87 the People of the State of v. Raymond Banks

November 23, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

RAYMOND BANKS, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

BOOKER T. BLAKES, APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT, V. RICHARD DUQUAINE, APPELLEE



SUPREME COURT OF ILLINOIS

520 N.E.2d 617, 121 Ill. 2d 36, 117 Ill. Dec. 266

No. 62815. -- Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Roger J. Kiley, Jr., Judge, presiding. No. 63179. -- Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Stephen J. Covey, Judge, presiding. No. 63352. -- Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Gino L. DiVito, Judge, presiding.

Rehearing denied April 5, 1988 1987.IL.1734

APPELLATE Judges:

JUSTICE MORAN delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case. CHIEF JUSTICE CLARK, specially Concurring. WARD, RYAN and MILLER, JJ., join in this special concurrence. JUSTICE SIMON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MORAN

In People v. Banks, No. 62815, the defendant was convicted in the circuit court of Cook County of murder and multiple counts of attempted murder, attempted armed robbery and aggravated battery. On appeal, defendant was represented by the Cook County public defender's office. The appellate court reversed defendant's attempted murder convictions but affirmed his conviction on all other charges. (63 Ill. App. 3d 891.) Defendant later filed a pro se petition for post-conviction review under the Post-Conviction Hearing Act (the Act) (Ill. Rev. Stat. 1981, ch. 38, par. 122-1 et seq.), alleging ineffective assistance of appellate counsel and requesting appointment of counsel other than the public defender. That request was denied and the trial court appointed an assistant Cook County public defender to represent the defendant. Thereafter, the court denied defendant's request for an evidentiary hearing and granted the State's motion to dismiss. Defendant appealed arguing that the trial court erred in appointing an assistant public defender to represent him in post-conviction proceedings where his petition alleged that an assistant public defender from the same office rendered ineffective assistance on direct appeal. The appellate court affirmed the trial court in an unpublished order. 137 Ill. App. 3d 1152.

In People v. Blakes, No. 63179, the defendant was convicted in the circuit court of Peoria County of unlawful use of weapons. Prior to closing arguments, the defendant informed the trial court that he did not believe that the assistant public defender assigned to his case was affording him adequate representation. At defendant's request, the trial court discharged defense counsel and appointed another assistant Peoria County public defender to represent defendant in post-trial proceedings. Defendant then filed a motion for a new trial, alleging that trial counsel rendered ineffective assistance. On appeal, defendant argued that post-trial counsel had a conflict of interest because he asserted the incompetency of another assistant public defender from the same office. The appellate court held that no conflict of interest existed since the Peoria County public defender's office is decentralized and the assistant public defenders work part-time under contract. 131 Ill. App. 3d 1004.

In People v. DuQuaine, No. 63352, the defendant was convicted of murder in the circuit court of Cook County. The Cook County public defender represented the defendant on appeal, and the appellate court affirmed in an unpublished order. Defendant subsequently filed a pro se petition for post-conviction relief, alleging ineffective assistance of appellate counsel. The Cook County public defender was appointed to represent defendant in post-conviction proceedings, and the trial court granted the State's motion to dismiss without an evidentiary hearing. In an unpublished order, the appellate court reversed the dismissal, finding that the trial court should have appointed counsel from outside the Cook County public defender's office. (143 Ill. App. 3d 1158.) In each cause, appeal is taken pursuant to Rule 315. 107 Ill. 2d R. 315.

A single issue is common to these consolidated cases: whether a defendant is entitled to appointment of counsel other than the public defender where the defendant challenges the effectiveness of assistance rendered by an attorney from the same public defender's office.

Defendants argue that a per se conflict of interest exists where an assistant public defender asserts that the defendant was previously rendered ineffective assistance by another assistant public defender from the same office. Under these circumstances, defendants reason, the public defender labors under conflicting loyalties: loyalty towards his client versus loyalty towards his office. Citing People v. Smith (1967), 37 Ill. 2d 622, defendants maintain that this court has long held that such a situation creates a per se conflict of interest. The State initially responds that Smith did not create a per se conflict of interest rule as it was limited to the facts in that case. Moreover, the State contends, even if Smith is read as establishing a per se conflict of interest rule it has been overruled by our later holdings. The State, citing People v. Robinson (1979), 79 Ill. 2d 147, argues that a case-by-case examination is mandated in order to determine whether an actual conflict of interest exists.

In People v. Smith (1967), 37 Ill. 2d 622, the defendant was represented at trial by an assistant public defender and later the defendant filed a pro se petition under the Act, charging trial counsel with ineffective assistance. Upon the filing of defendant's petition, the trial court appointed another assistant public defender from the same office to represent defendant in post-conviction proceedings. The defendant then moved for appointment of counsel other than the public defender, but the trial court denied the motion. This court reversed and remanded for a new hearing with appointed counsel other than the public defender finding that a conflict of interest exists where an assistant public defender asserts the incompetence of another assistant public defender from the same office. In People v. Terry (1970), 46 Ill. 2d 75, the court followed the holding in Smith. Terry involved a defendant who alleged in a post-conviction petition that he was ineffectively represented by an assistant public defender at the time of his pleading guilty. The court, quoting Smith, held that counsel other than the public defender should have been appointed to represent the defendant in post-conviction proceedings.

Our subsequent cases, however, evidence or under standing of the special nature of public defender's offices where conflicts of interest are concerned. Public defender's offices, we have recognized, are unlike private law firms for purposes of conflicts of interest. While a conflict of interest among any member of a private law firm will disqualify the entire firm (People v. Stoval (1968), 40 Ill. 2d 109), the disqualification of an assistant public defender will not necessarily disqualify all members of that office (People v. Robinson (1979), 79 Ill. 2d 147). In Robinson it was urged that where as assistant public defender is disqualified by reason of a conflict of interest then all other assistants in that office should be per se disqualified since these other assistants' loyalty to their office would conflict with their loyalty to their clients. The court rejected this contention, reasoning that any such loyalty to one's office was too remote to justify a per se conflict of interest rule. Referring to Robinson, the court in People v. Lewis (1981), 88 Ill. 2d 429, 438, stated that "we did not deem a personal allegiance or loyalty to the public defender's office sufficient to justify a rule that if one attorney employed by such an office were disqualified by reason of a conflict of interest, no other attorney employed by that office could undertake the representation." After rejecting a per se rule, the Robinson court prescribed a case-by-case inquiry designed to determine whether the facts of a particular case indicate an actual conflict and therefore preclude representation. This rule announced in Robinson has been reaffirmed in the subsequent holdings of the court. People v. Miller (1980), 79 Ill. 2d 454, 461 ("the disqualification of one assistant public defender due to a conflict of interest will not necessarily disqualify all members of the public defender's office"); People v. Walton (1979), 78 Ill. 2d 197 (no per se conflict where a public defender alleges that his predecessor in office rendered ineffective assistance); People v. Coates (1985), 109 Ill. 2d 431, 438-39 (no per se conflict where the public defender's office represented the defendant and the State's principal witness in an unrelated matter, rather, "a case-by-case examination is necessary to determine whether any facts peculiar to the case preclude the representation of the individuals whose interests were allegedly in conflict").

We agree with the defendants that Robinson did not directly overrule Smith. Robinson only decided that where an assistant public defender faces a conflict of interest, the conflict will not per se disqualify other members of the office, whereas Smith decided that a per se conflict exists where an assistant asserts the incompetency of another member of the office since he must confront competing loyalties towards his client and towards competing loyalties towards his client and towards his office. However, Robinson rejected the essential premise in Smith that an assistant public defender feels a strong loyalty to protect the reputation of his office. That is, Smith adopts a per se conflicts rule premised on the view that an assistant public defender's loyalty towards his office is so great that where he asserts the incompetency of another assistant, a conflict must necessarily be imputed to him; whereas Robinson rejected a per se conflicts rule precisely because it finds that an assistant public defender's loyalty towards his office is not great enough to impute to him the conflicts of other assistants. As such, Robinson reflects our appreciation that a public defender does not necessarily owe an allegiance to the reputation of his office such as to interfere with his undivided loyalty towards his client. Robinson evidences our concern that any such per se rule would needlessly disqualify competent and able members of the public defender's office.

Defendants nevertheless maintain that here a public defender's loyalty towards the reputation of his office is of such magnitude that a per se conflict of interest rule should apply whenever an assistant public defender asserts the incompetency of another assistant. We disagree. To begin, it is not clear to us that where an assistant public defender asserts the incompetency of another assistant, the reputation of the whole office is negatively impacted. To the contrary, it can be equally argued that a positive image is fostered where an office aggressively pursues allegations made against some of its members. More importantly, however, a per se rule would require us to presume that public defenders would allow any office allegiances to interfere with their foremost obligation to their clients. In our view, it is erroneous to assume that public defenders have such an allegiance and are unable to subordinate it to the interests of their clients. Though referring to a different type of conflict, the commentary to the American Bar Association Standards Relating to the Defense Function (ABA Standards, Conflict of Interest § 3.5 (1970)) is instructive:

"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 lawyer are sufficient protection." ABA Standards, The Defense Function, Commentary, at 212-13 (1970).

We therefore hold that where an assistant public defender asserts that another assistant from the same office has rendered ineffective assistance, a case-by-case inquiry should be conducted to determine whether any circumstances peculiar to the case indicate the presence of an actual conflict of interest; accordingly, we overrule this court's prior holdings in Smith and Terry. Here, defendants have not indicated, and our examination of the record does not reveal, circumstances which suggest that actual conflicts of interest were present.

Lastly, defendant Banks contends that he was nonetheless ineffectively represented because post-conviction counsel failed to investigate the existence of alleged alibi witnesses. However, this point will not be considered as it was not raised in the appellate court and ...


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