2020 IL App (1st) 173119
Ill. App. Ct.2021Background:
- Jan. 13, 2012: Pauline Betts-Bracy and Nathaniel Bracy were shot and killed; defendant Kenneth Rhodes was charged with first-degree murder.
- Cook County Public Defender attorneys Ed Koziboski and William Bolan represented Rhodes through pretrial litigation and were trial counsel.
- Jan. 9, 2017: Koziboski and Bolan were present when Rhodes allegedly struck a sheriff’s deputy; they became potential witnesses in a separate aggravated-battery prosecution of Rhodes.
- Mar. 20, 2017: Koziboski and Bolan moved to withdraw, citing a conflict because they might be called as witnesses; the trial court denied the motion, finding no per se or actual conflict and deeming Rule 3.7 inapplicable.
- The case proceeded to trial; the State introduced motive, ballistics (.357 revolver linked to Rhodes), gunshot residue on Rhodes’s jacket, and blood/DNA evidence; Rhodes did not testify, was convicted of first-degree murder, and received life imprisonment.
- On appeal Rhodes argued the denial of counsel’s withdrawal deprived him of conflict-free counsel because his attorneys were potential witnesses (a per se conflict); the appellate court affirmed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense counsel’s status as potential witnesses in a separate, pending criminal matter created a per se conflict of interest that deprived Rhodes of conflict-free counsel | The State: mere possibility that counsel could be witnesses in an unrelated matter does not create a per se conflict; Rule 3.7 does not apply to non-contemporaneous, separate matters; deny withdrawal. | Rhodes: counsel were potential witnesses against him in an ongoing criminal matter, creating a contemporaneous association with the State and therefore a per se conflict requiring withdrawal or reversal absent waiver. | The court held no per se conflict existed: the mere possibility of later testimony in a separate prosecution did not amount to the recognized categories of per se conflicts or a contemporaneous association with the prosecution; denial of withdrawal affirmed. |
Key Cases Cited
- People v. Green, 2020 IL 125005 (reaffirms right to conflict-free counsel; distinguishes actual vs. per se conflicts)
- People v. Fields, 2012 IL 112438 (identifies three categories that create a per se conflict)
- People v. Austin M., 2012 IL 111194 (courts must make a realistic appraisal of counsel’s relationships under the circumstances)
- People v. Holmes, 141 Ill. 2d 204 (a per se conflict requires no showing that counsel’s performance was actually affected)
- People v. Washington, 101 Ill. 2d 104 (per se conflict where defense counsel had employment ties to prosecuting entity)
- People v. Fife, 76 Ill. 2d 418 (per se conflict where counsel also served as part-time Assistant Attorney General)
- People v. James, 362 Ill. App. 3d 250 (refused to find per se conflict where defendant assaulted counsel and counsel remained; analogous factual scenario without creating per se conflict)