2017 IL App (4th) 140956
Ill. App. Ct.2017Background
- Ryan Schutz was charged in 2013 with multiple sex‑offense counts and related offenses; he waived a jury and proceeded to a bench trial in March 2014.
- M. Jane Foster entered appearance for Schutz in July 2013, then in November 2013 also began representing Kristopher Johnson in unrelated matters; Foster withdrew from Schutz’s case in December 2013.
- Johnson shared a jail cell with Schutz, later obtained incriminating statements from Schutz, and in February 2014 entered a plea agreement with the State conditioned on testifying against Schutz; Foster signed an acknowledgment of the plea.
- Schutz was represented at trial by David Rumley and Michael Herzog; both had previously represented Johnson in unrelated matters (Herzog for a June 2013 bond hearing; Rumley in an earlier theft case).
- Johnson testified at trial as a jailhouse informant; defense counsel impeached his credibility generally but did not impeach some specific prior convictions disclosed in discovery.
- The trial court found the victim credible, gave limited weight to Johnson’s testimony but noted corroborative details, convicted Schutz on several counts, and sentenced him to 12 years. Schutz appealed alleging conflicts of interest by Foster, Herzog, and Rumley.
Issues
| Issue | People’s Argument | Schutz’s Argument | Held |
|---|---|---|---|
| Whether Foster’s representation of Johnson created a per se conflict | Foster did not contemporaneously represent a prosecution witness at the time Johnson became a State witness; no per se conflict | Foster represented Johnson while still counsel for Schutz (overlap) so a per se conflict existed | No per se conflict — Johnson became a prosecution witness after Foster withdrew, so representation was not contemporaneous in the required sense |
| Whether Herzog’s prior representation of Johnson created a per se conflict | Herzog’s past brief representation of Johnson ended long before Johnson became a witness | Herzog’s earlier representation created a contemporaneous relationship and per se conflict | No per se conflict — Herzog’s representation ended well before Johnson became a prosecution witness |
| Whether any counsel had an actual conflict that adversely affected performance | No specific defect in strategy or tactics was caused by divided loyalties; impeachment and cross‑examination were adequate | Counsel (Herzog, Rumley) failed to impeach certain convictions because of loyalty to Johnson (former client), adversely affecting defense | No actual conflict shown — defendant failed to identify specific strategy defects attributable to conflicted loyalty; counsel sufficiently attacked Johnson’s credibility |
Key Cases Cited
- People v. Morales, 209 Ill. 2d 340 (Illinois 2004) (no per se conflict where alleged prosecution witness never testified)
- People v. Probst, 344 Ill. App. 3d 378 (Ill. App. 2003) (prior counsel–witness relationship irrelevant where unrelated to charged conduct)
- People v. Thomas, 131 Ill. 2d 104 (Illinois 1989) (contemporaneous representation of prosecution witness can create conflict when counsel fails to pursue witness‑related pretrial challenges)
- People v. Gerold, 265 Ill. 448 (Illinois 1914) (broad rule against attorneys undertaking adverse employment after representing a client)
- People v. Bailey, 374 Ill. App. 3d 1008 (Ill. App. 2007) (mere speculative conflicts are insufficient to show actual conflict)
- People v. Murry, 305 Ill. App. 3d 311 (Ill. App. 1999) (defendant entitled to undivided loyalty; describes per se conflict contexts)