People v. Downs
2017 IL App (2d) 121156-C
Ill. App. Ct.2017Background
- Mark A. Downs was convicted in 2009 of first-degree murder based largely on testimony from cooperating witnesses who received substantial benefits.
- After conviction, Downs filed extensive pro se posttrial ineffective-assistance claims; the trial court conducted a flawed preliminary Krankel inquiry that became adversarial and removed appointed counsel, prompting remand in Downs I.
- On remand the same Krankel counsel was reappointed, then filed a third amended motion that abandoned most of Downs’s specific claims (including alibi and bench-trial claims) and instead pressed only a vague catch-all claim; counsel did not meaningfully consult Downs and in the motion argued against many of Downs’s pro se contentions.
- The trial court denied relief; appellate review initially focused on a separate jury-question issue, but the Illinois Supreme Court later remanded for consideration of whether Krankel counsel rendered ineffective assistance in light of People v. Cherry.
- The appellate court (on remand) found Krankel counsel’s performance objectively deficient for abandoning nonfrivolous claims and actively arguing against Downs’s interests, concluding that counsel’s conduct amounted to no representation and triggered the Cronic meaningful-adversarial-testing exception; the court reversed and remanded for a new second-stage Krankel hearing with newly appointed counsel.
Issues
| Issue | People’s Argument | Downs’s Argument | Held |
|---|---|---|---|
| Whether Krankel counsel’s performance must be judged under Strickland or subjected to presumed prejudice under Cronic | Krankel counsel properly evaluated claims and was not required to adopt every pro se allegation; his participation satisfied Cherry. | Krankel counsel abandoned specific nonfrivolous claims and actively advocated against Downs, so prejudice should be presumed. | Court: Strickland governs generally, but Cronic’s meaningful-adversarial-testing exception applies here; prejudice is presumed because Krankel counsel effectively provided no representation. |
| Whether Krankel counsel had an obligation to present all nonfrivolous pro se claims or, if none existed, to seek withdrawal (Anders/Greer approach) | Counsel may independently evaluate and decline frivolous claims; no precedent forces adoption of every claim. | Counsel must present any claim with an arguable basis; if none exist, counsel must move to withdraw with an explanatory memorandum. | Court: Krankel counsel must present nonfrivolous claims at second-stage; if none exist, counsel should follow Greer/Anders and move to withdraw with analysis. |
| Whether Downs’s alibi and related claims were nonfrivolous and required presentation | State argued alibi was a matter of strategy and that some claims lacked merit or were debunked. | Downs argued the alibi and other claims showed trial-counsel neglect and were nonfrivolous (supported by affidavits). | Court: Alibi claim was nonfrivolous and should have been presented; another claim ("Baby") was later factually debunked but illustrated counsel’s duty to present potential claims. |
| Appropriate remedy for Krankel counsel’s failures | State: no new relief; Krankel counsel participated and filed a motion. | Downs: reversal and new second-stage Krankel hearing with different appointed counsel. | Court: Reversed and remanded for a proper second-stage Krankel hearing; appoint different counsel and require presentation of any nonfrivolous claims (or follow Greer if none). |
Key Cases Cited
- People v. Cherry, 2016 IL 118728 (Ill. 2016) (explains Strickland standard and rare scope of presumed-prejudice exceptions)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes deficient-performance and prejudice test for ineffective assistance)
- United States v. Cronic, 466 U.S. 648 (U.S. 1984) (recognizes limited circumstances where prejudice may be presumed, e.g., no meaningful adversarial testing)
- People v. Krankel, 102 Ill. 2d 181 (Ill. 1984) (requires trial court to inquire into pro se ineffective-assistance claims and appoint counsel if neglect appears)
- People v. Moore, 207 Ill. 2d 68 (Ill. 2003) (describes two-stage Krankel procedure and role of newly appointed counsel)
- People v. Greer, 212 Ill. 2d 192 (Ill. 2004) (requires counsel to seek withdrawal when no nonfrivolous postconviction claims exist; analogized here for Krankel counsel)
- People v. Morris, 209 Ill. 2d 137 (Ill. 2004) (counsel’s actions so undermining to the defense can satisfy the meaningful-adversarial-testing exception)
- People v. Pitman, 211 Ill. 2d 502 (Ill. 2004) (discusses limits and interplay of ineffective-assistance precedent)
- People v. Jolly, 2014 IL 117142 (Ill. 2014) (preliminary Krankel inquiry must be neutral and nonadversarial)
- People v. Zemblidge, 104 Ill. App. 3d 654 (Ill. App. Ct.) (discusses post-commencement waiver of jury-trial rights)