Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 99 CR 13829,
Honorable Mary M. Brosnahan, Judge, presiding.
JUSTICE delivered the judgment of the court, with opinion.
Justice Pucinski concurred in the judgment and opinion.
Presiding Justice Mason dissented, with opinion.
1 A self-represented criminal defendant should have access to
the same trial materials as his or her counsel, with
redactions required by law. That just principle underlies
2 Charles Dixon filed a postconviction petition alleging a
long list of constitutional violations that he claimed
occurred at his trial. The trial court docketed his petition
and appointed counsel. Extensive delay in the proceedings as
well as postconviction counsel's decision to raise only
two claims on Dixon's behalf eventually led Dixon to
reluctantly seek to represent himself, which the trial court
allowed. After lengthy litigation about Dixon's access to
his trial attorney's file, the State moved to dismiss the
petition, and the trial court granted its motion.
3 Dixon argues that the trial court erred when it allowed him
to proceed pro se without access to his trial
attorney's file. He contends that the trial court's
denial of access rendered his waiver of postconviction
counsel invalid. At oral argument, counsel confirmed
Dixon's position that the trial court's denial of
access to his trial counsel's file, regardless of the
sufficiency of his waiver of postconviction counsel,
constituted "reason alone for this court to remand for
second stage proceedings." Also at oral argument, the
State conceded that Dixon's trial counsel's file
should be turned over to him after appropriate redactions.
Dixon also presses two of the claims from his postconviction
petition on the merits, arguing that he has made a
substantial showing of his trial counsel's
4 Given the clarification of the parties' positions at
oral argument, we no longer need to determine whether Dixon
validly waived the assistance of postconviction counsel.
Instead, we find, as the parties now agree, that depriving
Dixon of his requested access to his trial counsel's file
constitutes error. We reverse and remand for new second-stage
6 Twenty years ago, Charles Dixon went into Iona
Feldman's shoe repair shop and beat him with a stick.
Dixon took Feldman's wallet and left. About three months
later, Feldman died from his injuries. Dixon was charged
with, among other offenses, first degree murder and
aggravated battery. Before trial, defense counsel filed a
motion to suppress statements that Dixon had given to police
based, in part, on a claim that the statements had been
coerced when the police officers involved had
"misadministered the dosages" of Dixon's pain
medications, rendering the statements involuntary. At the
motion hearing, two Chicago police detectives denied that
they had given Dixon any medication. Trial counsel presented
no witnesses and offered no argument. The trial court denied
7 The case proceeded to a jury trial. During opening
statements, defense counsel made reference to the possibility
that witnesses implicated Dixon only after "posters of a
reward went up." Counsel presented no evidence of a
reward. The jury found Dixon guilty of both murder and
8 Trial counsel filed a motion for a new trial. Dissatisfied
with trial counsel's representation, Dixon asked that
counsel be discharged. The court granted Dixon's request
and allowed him to represent himself.
9 Dixon then filed his own motion for a new trial, repeating
many of the allegations in counsel's motion. Attached to
Dixon's motion, however, was a document labeled
"Petition for Post-Conviction Relief With Memorandum of
Law." That document alleged ineffective assistance of
trial counsel, including counsel's failure to present
evidence at the hearing on the motion to suppress statements
and counsel's failure to support, with evidence, the
claim about a reward.
10 Because Dixon had yet to be sentenced, the trial court
treated Dixon's "Post-Conviction" petition as
an addendum to his motion for a new trial. The court held a
hearing as provided in People v. Krankel, 102 Ill.2d
181 (1984), at which trial counsel testified. The trial court
denied Dixon's motion for a new trial.
11 The trial court sentenced Dixon to consecutive prison
terms of natural life for first degree murder and 30 years
for aggravated battery. Dixon appealed.
12 On direct appeal, Dixon raised several issues, all aimed
at the posttrial and sentencing proceedings. We agreed that
his natural life and 30-year sentences should be modified to
run concurrently, but otherwise affirmed the judgment.
People v. Dixon, 366 Ill.App.3d 848, 856-57 (2006).
13 In September 2005, the direct appeal still pending, Dixon
filed the postconviction petition now before us. His initial
petition contained seven allegations of ineffective
assistance of trial counsel and about 300 pages of exhibits.
This petition appears nearly identical to the petition
attached to Dixon's pro se motion for a new
trial. After the mandate issued in the direct appeal, the
trial court docketed the petition and appointed counsel.
14 Counsel first appeared in May 2007, and so began a lengthy
series of continuances. By September 2009, counsel had read
only the transcripts and indicated "a potential
issue" to raise on Dixon's behalf. Counsel explained
to the court that she "would like to take a look at [the
trial file] before deciding exactly how to proceed with that
particular issue" and asked for what became another
series of continuances.
15 Counsel reported to the trial court in January 2010 that
she had "gone through much of [the trial file]" and
spoken with the original investigator on Dixon's case.
Based on the conversation with the investigator, counsel
needed to examine the trial file in greater depth.
16 Nothing more happened until April 2010. Counsel explained
to the court that, in a phone call with Dixon, he had told
her that he filed a motion to proceed pro se. The
court had not received it and ordered Dixon to appear. On
April 29, Dixon confirmed that he wished to represent
17 The next day, the trial court allowed Dixon time to speak
with his brother about his decision to represent himself and
admonished Dixon on the perils of
self-representation. The court learned that Dixon,
55 years old, had earned both a GED and associates degree.
Dixon said that he was taking blood pressure and pain
medications, and neither affected his ability to think
clearly. Dixon denied ever receiving treatment or medication
for mental health.
18 The trial court told Dixon that the public defender's
office would be far better than he would be at navigating
postconviction proceedings and conducting investigations. The
court warned Dixon that, if he represented himself, it would
not appoint investigators, order the Department of
Corrections to grant him extra library time, or appoint
standby counsel. Dixon, concerned about his access to the
trial file and other documents, interjected:
"DIXON: Let me ask you one question. This is the
question I want to ask you, like the trial attorney records,
and all of that stuff that was supposed to have been used in
my trial, I got a list of documents, police reports, general
progress notes, stuff that they used, and stuff that the
State used, will I get a chance to at least get that, because
that['s] going to be-
THE COURT: I will have the Defense redact the reports that
they have and I would get you copies of that. When I say
redact, that means you don't get home addresses and phone
numbers of witnesses or individuals.
[DIXON]: No, I don't need that. I just-[The report of
proceedings attributes this statement to the Assistant Public
Defender. We agree with the State's representation in its
brief that, in context, Dixon spoke].
THE COURT: They get blacked out. The information that you
can't have would be blacked out.
DIXON: But other than that, I get everything they got access
to or had access to, right?
THE COURT: I don't know exactly what all those documents
are, so possibly we would have to have a discussion about
some of that. I don't know.
DIXON: Well, as long as I can get the documents and the stuff
from the State, you know, I need that they get, any witnesses
receive any special treatment for their testimony, you know,
any time cuts.
THE COURT: Let's see what you are proceeding on. Is there
already a document filed by Mr. Dixon?
DIXON: I got it right here. I didn't never get a chance
because the law libary [sic] didn't call me over
there to make copies.
brief interruption where the parties discussed the case's
procedural history, the court's colloquy with Dixon
THE COURT: You are indicating you want to file an amended
petition? All right. How much time do you need to get that on
DIXON: Well, I got to get the documents. Once I get the
documents, I would imagine that the documents come right
away, about four or five months, you know, given I got this
THE COURT: All right. Here's what I'm going to do.
Why don't I hold it over. Defense, how much time would it
take for you to have your redacted documents together?
MS. PAHL: It would depend, [Y]our Honor, on exactly what
documents. If Mr. Dixon already has the transcript, the
common law record, I could-I have in my office from the
appeal, I could redact that. That would be fairly simple.
The trial attorney's files, which I have examined in this
case, are two very large boxes of documents. That would be an
enormous project. I do not know if all of that would be
relevant to all the claims.
THE COURT: All right. Well, first what I'm going to do is
why don't you review your petition that you have on file,
what it is you are looking for, and you can tell me what it
is you want from them.
DIXON: Well, I really want all the stuff she just named. I
got the stuff right here."
court ultimately told postconviction counsel to prepare a
copy of the common law record and continued further
discussion of discovery until the assigned assistant
state's attorney (ASA) could be present "in case
they have any objections" to the production of
19 The trial court reminded Dixon that it was "a really
bad decision" to represent himself, but concluded that
he understood the consequences and granted the public
defender's office leave to withdraw and allowed Dixon to
proceed pro se.
20 In late May 2010, Dixon requested access to trial
counsel's entire file, including police reports, lab
reports, four of the State's trial exhibits, handwritten
statements from three trial witnesses, and many other
documents to which he claimed trial counsel had had access.
21 The State's response, relying on People ex rel.
Daley v. Fitzgerald, 123 Ill.2d 175 (1988), argued that
Dixon had failed to show "good cause" for the
discovery. The State characterized his request as "a
wide ranging search to confirm mere speculation." During
the hearing on the motion, the court asked Dixon to explain
the relevancy of each request.
22 The court granted discovery of the general progress
reports related to one witness's interview with police
and of that witness's and two others' handwritten
statements, but denied the remainder. As to trial
counsel's file, the trial court found that the contents
constituted work product and that there had been
"nothing other than the possibility that it would lead
[Dixon] in a direction to develop a postconviction, and
again, that's not the scope of discovery. The discovery
is an order to [shore] up a claim that you already
have." The trial court denied Dixon's motion to
23 About three-and-a-half years later, Dixon filed an amended
postconviction petition, which the State moved to dismiss.
The motion remained pending for more than a year. In all,
Dixon's petition remained pending for 11 years from the
date of the initial filing. During that time a host of
factors contributed to the delay. Many continuances arose due
to lengthy lockdowns at Dixon's Illinois Department of
Corrections facility, resulting in limited access to the law
library. The Departments of Corrections, both Illinois and
Cook County, misplaced Dixon's legal materials at least
twice. Dixon filed two motions for substitution of judge,
both of which were denied. And, as we have outlined, the
parties engaged in extensive litigation about Dixon's
access to discovery materials.
24 Ultimately, the trial court dismissed Dixon's
postconviction petition. Dixon sought reconsideration, which
the trial court denied on January 20, 2016. That same day,
Dixon filed his notice of appeal.
26 Dixon's brief contends that "[t]he trial court
erred when it granted Dixon's motion to proceed pro
se at the second stage but then handicapped him by
refusing to allow access to the documents used by the
attorney who previously represented him." He spends the
bulk of his argument claiming that the trial court's
denial of access rendered his waiver of postconviction
counsel invalid. He also argues, as an alternate theory, that
the trial court's rulings that the trial file constituted
discovery and work product "were erroneous." He
claims that his counsel's file cannot be discovery
because the contents had already been tendered and the file
cannot be considered work product because it came from his
own attorney. On either basis, he asks us to afford him full
access his counsel's trial file and to remand for
second-stage proceedings. Dixon does not oppose redactions as
required by People v. Maldonado, 193 Ill.App.3d
1062, 1068 (1989) (allowing court to bar disclosure of new
witness addresses to counsel where "substantial
risk" of physical harm, intimidation, annoyance, or
embarrassment outweighing usefulness of disclosure).
27 The State frames its response similarly. In the first part
of its brief on this issue, the State argues that the trial
court did not abuse its discretion by allowing Dixon to
proceed pro se. In the second part, the State
contends that "the [trial] court's decisions
regarding discovery were correct" because the trial file
constituted discovery or was otherwise protected by the
work-product doctrine. Because of the State's position
that the trial file constituted discovery, the State argued
that Dixon had failed to show "good cause" for
receiving the file.
28 The trial court offered two reasons for denying Dixon
access to his trial counsel's file: (i) Dixon had shown
"nothing other than the possibility that it would lead
[him] in a direction to develop a postconviction" and,
in the court's view, postconviction discovery means
"to [shore] up a claim that you already have," not
to search for new claims, and (ii) the contents of the file
constituted work product. The State repeats these arguments
in its brief. We find both arguments unpersuasive; as a
substantive matter, Dixon was entitled to the contents of his
trial counsel's file.
29 The Post-Conviction Hearing Act (or Act) (725 ILCS 5/122-1
et seq. (West 2016)) provides a mechanism by which
defendants can seek remedy for alleged constitutional
violations that occurred during their trials. People v.
Coleman, 183 Ill.2d 366, 378-79 (1998). Proceedings
under the Act take place in three stages. People v.
Boclair, 202 Ill.2d 89, 99 (2002). At the first stage,
the trial court reviews the petition and only may dismiss a
frivolous or patently meritless petition. Id. at
99-100. Should a petition survive the first stage, it
continues to the second stage where counsel may be appointed
and the State can move to dismiss. Id. at 100. If
the State's motion to dismiss is denied, or no motion to
dismiss filed, the trial court conducts an evidentiary
hearing on the merits. Id.
30 The Act straddles the civil-criminal divide, leading our
supreme court to describe it as sui generis, meaning
"of its own kind." Daley, 123 Ill.2d at
181. So, neither the civil discovery rules nor the criminal
discovery rules apply in postconviction proceedings.
Id. at 181-82. Daley dealt specifically
with discovery depositions, and in that context, a
postconviction petitioner must show "good cause"
for the request. Id. at 183-84. The court has since
applied the "good cause" requirement more
generally. People v. Johnson, 205 Ill.2d 381, 408
(2005) (evidence deposition); People v. Fair, 193
Ill.2d 256, 264-65 (2000) (confession and witness
interviews). A trial court's decision to grant or deny a
postconviction discovery request will not be disturbed absent
an abuse of discretion. Johnson, 205 Ill.2d at 408.
31 Initially, we find it odd to think of trial counsel's
file as "discovery" when the party requesting it is
counsel's own client. Traditionally, the goal of
postconviction discovery is to allow a petitioner to engage
in a limited search for new information. Cf. Daley,
123 Ill.2d at 184 (discussing possibility that discovery may
not be necessary if information already available elsewhere).
Dixon's counsel confirmed this view by conceding at oral
argument that he is not alleging error as to any information
from a third party source that is not already in the trial
file. By contrast, the information in trial counsel's
file would not have required the production of new
information. While Dixon may not have personally viewed some
of the materials in the trial file, the information had
already been discovered. That said, accepting the
characterization of the trial file as "discovery,"
the trial court's reasons for denying access to it were
32 The trial court denied Dixon access, in part, because the
court believed he was "fishing." We disagree, and
find our supreme court's decision in Fair to be
instructive. The petitioner in Fair sought
documentary evidence from the State's trial file,
including a confession to criminal conduct from the judge who
presided over the petitioner's trial and other witness
statements. Fair, 193 Ill.2d at 259, 263-64. The
trial court denied petitioner's request. Id. at
263. The State argued, as it does here, that the petitioner
had not shown good cause for the discovery request because
nothing in his petition showed a nexus between the
postconviction claim and the discovery. Id. at 266.
33 The supreme court, rejecting that argument, stressed that
it would put postconviction petitioners in "an
impossible dilemma." Id. The State's
theory, both in Fair and here, would allow a
postconviction petitioner "to seek out evidence that
there is a nexus between [the evidence requested] and
petitioner's trial only if he [or she] already possesses
such evidence." Id. at 266-67. That position
puts Dixon to the impossible task of using the evidence he is
requesting to prove his need for the evidence. The
circularity of this argument jeopardizes the availability of
information, particularly to an indigent petitioner.
34 The State's argument becomes even more troubling on
consideration of the facts. Postconviction counsel's
initial review of the trial file appears to have been
fruitful. At the time that the trial court accepted
Dixon's waiver, postconviction counsel already had
represented to the court that she "had access to the
trial attorney's file," that she had "gone
through much of it," and that she had also "spoken
with the original investigator on the case," which led
her to ask for additional time to review the file. Dixon
later told the court that before postconviction counsel's
withdrawal, he and counsel had agreed to raise one claim of
ineffective assistance of trial counsel and one claim of
ineffective assistance of appellate counsel. We can assume
that postconviction counsel's determination that two
issues had merit came from counsel's examination of the
trial file, and not the trial record, where the issues would
have been either res judicata or waived. See
People v. Holman, 2017 IL 120655, ¶ 25
("[I]ssues that were raised and decided on direct appeal
are barred from consideration by the doctrine of res
judicata; issues that could have been raised, but were
not, are forfeited."). We cannot say, as the trial court
did, that Dixon's desire to examine the file constitutes
a "fishing expedition" under these facts.
35 The trial court also found, and the State argues in its
brief, that the trial file cannot have been turned over
because of "notes or memos concerning strategy,"
which the State and the trial court characterize as
"work product." We find this argument unavailing.
36 The work-product doctrine arises from the recognition that
lawyers need a degree of privacy when preparing a
client's case. People v. Spiezer, 316 Ill.App.3d
75, 80-81 (2000) (discussing Hickman v. Taylor, 329
U.S. 495, 510-11 (1947)). The doctrine protects a client from
"unnecessary intrusion by opposing parties and their
counsel." (Internal quotation marks omitted.)
Id. That protection "facilitate[s] the flow of
information leading to theories and strategies to be employed
by the attorney at trial." Id. at 88. The
doctrine provides a shield behind which an attorney can
"seek, on his [or her] own, information about the case
that he [or she] could not obtain from his [or her] adversary
through the discovery process." Id.
37 The work-product doctrine is not absolute. Id.
Even when the opposing party seeks information traditionally
protected by the work-product rule, the court must strike a
balance "between the need to accord protection to work
that is performed on the case *** and the need to ensure that
the trier of fact will be exposed to the relevant facts of
the case and necessary interpretations of the evidence."
Id. at 88-89. In addition to that balancing, the
work-product doctrine can be waived. People v.
Grier, 90 Ill.App.3d 840, 848 (1980). In the analogous
context of attorney-client privilege, a defendant waives his
or her privilege by alleging counsel's ineffectiveness.
People v. O'Banner, 215 Ill.App.3d 778, 793
38 We have been unable to find, and the parties have not
cited, any case applying the work-product doctrine to a
client's own access to his or her counsel's file
while he or she litigates a postconviction petition without
counsel. But, we find sufficient guidance in the principles
behind the work-product doctrine more generally.
39 We start with the purpose of the work-product doctrine-to
prevent interference with trial preparation by
opposing parties. That concern evaporates when, like
here, Dixon requests access to his own counsel's file.
Trial counsel had long-since gathered the information and the
"flow of information" has already stopped. One
cannot label Dixon's access to his own file as
"interference." And, any information that counsel
collected would have been conveyed to Dixon as his counsel
prepared for trial; indeed, trial counsel's testimony at
the posttrial Krankel hearing reveals that Dixon and
his counsel discussed trial strategy and the status of
counsel's investigations. While Dixon may not have laid
his eyes on every document, the substance of trial
counsel's file had been largely revealed to Dixon as he
and his counsel prepared for trial.
40 We also observe that Dixon's request for the trial
file cannot be thwarted by the work-product doctrine, given
the nature of his ineffectiveness claims. The work-product
doctrine allows defense counsel to freely develop trial
strategy, and Dixon has called trial counsel's strategy
decisions directly into question by alleging ineffectiveness.
The trial file may be the best place for Dixon to look to
determine which of his counsel's strategic decisions can
be challenged in a postconviction petition.
41 Even if the work-product doctrine applied, we would strike
the balance discussed in Spiezer-between the
protection of counsel's work and the trial court's
need for full factual development-in favor of disclosure.
Dixon's trial is over, and his postconviction claims
necessarily depend on facts outside of the trial record. He
must substantiate those claims with facts not previously
known, which he cannot do without the complete file. Fully
protecting his counsel's strategic decisions and
development of trial theories is of little moment. The
work-product doctrine, even if it applies, simply does not
bar Dixon's access to his own counsel's file.
42 We are satisfied that the Illinois cases describing the
work-product doctrine point us to the right answer. But we
note that the question of work product
vis-à-vis client access to his or her
counsel's file during postconviction proceedings has come
up in other jurisdictions. Many courts agree that the
work-product doctrine "is meant to protect an attorney,
but not from his [or her] own former client." Hiatt
v. Clark, 194 S.W.3d 324, 329 ...