People v. Schutz
2017 IL App (4th) 140956
| Ill. App. Ct. | 2017Background
- In July 2013 Ryan Schutz was charged with multiple sex‑offense counts and retained attorney M. Jane Foster. Foster participated in several pretrial matters before withdrawing in December 2013.
- In November 2013 Foster began representing Kristopher Johnson in unrelated criminal matters; Johnson shared a jail cell with Schutz and later obtained incriminating statements from Schutz.
- In February 2014 Johnson entered a plea agreement conditioned on his testifying against Schutz; Foster acknowledged the plea. Schutz was tried in March 2014 represented by attorneys David Rumley and Michael Herzog.
- Rumley and Herzog had both previously represented Johnson in unrelated matters at different times (Herzog at a June 2013 bond hearing; Rumley in a prior theft case). Those prior representations were not disclosed to Schutz or the trial court.
- At bench trial Johnson testified against Schutz; Rumley and Herzog cross‑examined but did not impeach Johnson with certain disclosed past convictions. The court found the victim credible and, while noting limited reliability of Johnson, found some of his testimony corroborative and convicted Schutz; he was sentenced to 12 years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Foster’s representation created a per se conflict (contemporaneous representation of prosecution witness) | State: No per se conflict because Johnson did not become a prosecution witness until after Foster withdrew | Schutz: Foster began representing Johnson while still representing Schutz, so representation was contemporaneous and created a per se conflict | Court: No per se conflict — Johnson was not a prosecution witness while Foster was representing Schutz (Johnson became a witness after Foster withdrew) |
| Whether Herzog’s prior representation of Johnson created a per se conflict | State: No — Herzog’s representation ended well before Johnson became a prosecution witness | Schutz: Herzog previously represented Johnson (bond hearing) creating contemporaneous relationship or appearance of divided loyalty | Court: No per se conflict — Herzog’s representation was not contemporaneous with Johnson’s role as a prosecution witness |
| Whether any attorney (Foster, Herzog, Rumley) had an actual conflict that adversely affected performance (failure to impeach with certain convictions) | State: No actual conflict shown; counsel vigorously cross‑examined and highlighted motives and inaccuracies in Johnson’s testimony | Schutz: Prior attorney–client ties to Johnson caused divided loyalties and explain why counsel failed to impeach with certain disclosed convictions | Court: No actual conflict — defendant failed to show a specific defect in strategy/tactics caused by divided loyalties; cross‑examination and closing argument attacked Johnson’s credibility |
| Remedy: Whether convictions must be reversed/remanded for new trial due to conflicts | State: No reversal; no disabling conflict shown | Schutz: Convictions should be reversed and remanded because counsel labored under conflicts | Court: Affirmed convictions; no relief because neither per se nor actual conflict established |
Key Cases Cited
- People v. Fields, 2012 IL 112438 (defines three situations giving rise to a per se conflict)
- People v. Morales, 209 Ill. 2d 340 (no per se conflict where attorney represented a potential witness who never became a prosecution witness)
- People v. Thomas, 131 Ill. 2d 104 (contemporaneous representation of a prosecution witness can create a conflict when relevant to defense strategy)
- People v. Probst, 344 Ill. App. 3d 378 (prior unrelated representation of a witness did not create a per se conflict when it was not relevant to defendant’s trial)
- Gerold v. People, 265 Ill. 448 (early statement of strict conflict principles regarding former counsel taking adverse employment)