discovery turned over by the prosecution. Counsel failed to interview any witnesses. Counsel failed to pursue evidence as to whether the crime occurred. Counsel failed to pursue impeachment material against the complainant. None of defense counsel's decisions could be deemed objectively reasonable strategy decisions, as they were typically based on ignorance of the facts and law. Counsel must subject the prosecution's case to an advocate's testing. Defense counsel may not merely sit at counsel's table hoping the judge or jury elects not to believe the victim's testimony. Counsel Beauchamp, in doing so, particularly in the face of the post-arrest confessions, tempted the fates and undermined the integrity of the proceeding. Counsel Beauchamp, in short, failed to provide petitioner a fair trial.
Joint Representation/Severance Issues
Given this court's conclusions regarding counsel Beauchamp's investigation, these matters will be addressed only briefly.
A criminal defendant is entitled to an attorney who gives his client his undivided loyalty. United State v. Barnes, 909 F.2d 1059, 1065 (7th Cir. 1990). A claim of ineffective assistance is possible when the attorney is burdened by a conflict of interest. Id. Joint representations, however, do not constitute per se violations of the Sixth Amendment. United States ex rel. McCall v. O'Grady, 908 F.2d 170, 172 (7th Cir. 1990) (citing Holloway v. Arkansas, 435 U.S. 475, 482, 98 S. Ct. 1173, 1177, 55 L. Ed. 2d 426 (1978)). To establish ineffective assistance based on a conflict of interest, a defendant, who did not object at trial, must demonstrate an actual conflict of interest that adversely affected the performance of his counsel. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S. Ct. 1708, 1718, 64 L. Ed. 2d 333 (1980) Proof of an actual conflict of interest creates a presumption of prejudice. Id. at 345-50, 100 S. Ct. at 1716-19.
Severance is appropriate if the defendants' defenses are mutually antagonistic; mutual antagonism is present if: (1) the defenses are so inconsistent that the making of a defense by one party will lead to an unjustifiable inference of another's guilt; or (2) the acceptance of a defense precludes acquittal of the other defendant. United States ex rel. Williams v. Peters, 843 F. Supp. 427, 433 (M.D. Ill. 1994) (citing Stomner v. Kolb, 903 F.2d 1123, 1127 (7th Cir.) cert. den. 498 U.S. 924, 111 S. Ct. 305, 112 L. Ed. 2d 258 (1990)) . Further, the Seventh Circuit has a preference for the joint trial of those who engaged in a common enterprise, which has the benefits of (1) saving prosecutorial time and resources; (2) providing the jury with a broad perspective; and (3) reducing the chance the defendant will attempt to create reasonable doubt by blaming an absent colleague when both participated in the offense. Id. (citing United States v. Buljubasic, 808 F.2d 1260, 1263 (7th Cir.) cert. den. 484 U.S. 815, 108 S. Ct. 67, 98 L. Ed. 2d 31 (1987)).
In the parallel case involving Roy Williams, Judge Alesia concluded that no specific facts or acts by counsel indicating an actual conflict of interest were raised. 843 F. Supp. at 435. Further, Judge Alesia concluded that foregoing a motion to sever was a reasonable strategic decision, despite petitioner's pretrial statements implicating Roy Williams, because both parties had a common defense, denied the crime occurred, and denied making the incriminating post-arrest statements. Id. at 433.
It is undisputed that Beauchamp never discussed the merits of separate counsel for petitioner or ever discussed, or considered, the appropriateness of a severance. As Beauchamp never considered these matters, no strategic decision was made.
Petitioner argues the following regarding the alleged conflict of interest:
- Roy Williams' confession created an impermissible conflict of interest;