In rе DENZEL W., a Minor (The People of the State of Illinois, Appellant, v. Denzel W., a Minor, Appellee). THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KENNETH SMITH, Appellant.
Nos. 107003, 107112
Supreme Court of Illinois
March 18, 2010
Rehearing denied May 24, 2010
237 Ill. 2d 285
Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, and Caroline Ellis Bourland, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, and Brian A. McNeil, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant.
Lisа Madigan, Attorney General, of Springfield, and Anita Alvarez, State‘s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg and Douglas P. Harvath, Assistant State‘s Attorneys, of counsel), for the People.
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Fitzgerald and Justices Thomas, Kilbride and Karmeier concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke.
This consolidated appeal raises the issue of whether a defendant‘s right to counsel is violated where defense counsel fails to comply with
BACKGROUND
1. In re Denzel W.
Respondent Denzel W., a minor, was charged, in the circuit court of Cook County, with one count of aggravated battery against Bobbi F.1 arising from an incident that occurred at Ridgeland Commons community park in Oak Park, Illinois. At a bench trial on
At trial, Bobbi F. testified that she and several friends had gone to Ridgeland Commons to sled, and Bobbi was approached by respondent and his friends. Bobbi stated that although she tried to walk away, respondent followed her and began making lewd comments. Bobbi then ran away from respondent into a park building, but respondent followed her and dragged her out of the building by her ponytail. According to Bobbi, respondent then pulled her to the front of the building where he repeatedly slammed her head into a рatch of ice. A few moments later, respondent picked Bobbi up and threw her into a garbage can before walking away. On cross-examination, conducted by the assistant public defender, Bobbi admitted that she and respondent had quarreled in the past. The State also called Grant M., one of the boys who had been sledding with Bobbi F., and Bobbi‘s mother. Both witnesses were cross-examined by the assistant public defender.
Respondent‘s first witness was Tequila T., and the direct examination of Tequila was performed by the 711 law student, J.F. Tequila testified that she had been sledding at Ridgeland Common that day along with Bobbi F., Grant M., and others. She stated that she had not seen anything out of the ordinary that day, and she had not seen Bobbi with respondent, although she had seen respondent and his friends at the park. When J.F. began to ask Tequila a leading question about what she had seen respondent and his friеnds doing, the court interjected an admonition:
“Q. [by J.F.] Did you see him doing anything with his friends?
A. They was just talking.
Q. They were just socializing at the Ridgeland Commons? THE COURT: No. No. It‘s not what she said. Don‘t you summarize and put words in her mouth. You ask questions. That‘s all. You do not ask leading questions.”
J.F. also attempted to elicit testimony about Bobbi‘s reputation around school:
“Q. Did you go to school with [Bobbi]?
A. Yes.
Q. What type of reputation did [Bobbi] have at school?
[State‘s Attorney]: Objection.
THE COURT: Her reputation—Sustained.
[Assistant public defender]: Judge.
THE COURT: If it goes to peacefulness, that‘s fine. If it goes to anything else, no. It has nothing to do with this case. You have to lay a proper foundation for reputation. If you‘re going to go to peacefulness.
[J.F.]: Nothing further with this witness, your Honor.”
On cross-examination, Tequila claimed that she and others had warned Bobbi not to go down the sledding hill when respondent and his friends were there. The assistant public defender then attempted to begin a redirect examination, but he was stopped by the court, who said, “You didn‘t start this examination. You don‘t get to finish it. Your co-counsel did the examination. *** We don‘t play tag team here.” The attorney reрlied, “That‘s fine,” and the court added, “If she [J.F.] has other questions to ask on redirect, fine.” J.F. then conducted a brief redirect.
J.F. also conducted a direct examination of Travis P., a friend of respondent. Travis testified that he had been with respondent at the park, and that he had been apart from respondent for only about two minutes during the afternoon. He also said that he did not see respondent grab Bobbi, nor did he see any injuries on Bobbi that day. Respondent then called Bobbi F. to testify again, and she was examined by the assistant public defender.
Finally, respondent testified on his own behalf, also examined by the assistant public defender. Respondent
The assistant public defender also gave respondent‘s closing argument, arguing that Bobbi had fabricated the entire story because she “never liked” respondent. The court found that the State had met its burden, and adjudicated respondent delinquent. Respondent appealed, and the appellate court reversed the circuit court‘s decision and ordered a new trial. In re Denzel W., No. 1-05-3374 (unpublished order under
2. People v. Smith
Defendant Kenneth Smith was charged, in the circuit court of Cook County, with possession of a controlled substance with intent to deliver, delivery of a controlled substance, possession of a controlled substance with intent to deliver within 1,000 feet of a school, and delivery of a controlled substance within 1,000 feet of a school. Before trial, defendant moved to quash his arrest and suppress all evidence gathered therefrom, arguing that the police had not had probable cause.
During the hearing, J.B. conducted the examination of defendant, who testified that he had been walking on a sidewalk when a police car pulled up on the street behind him. According to defendant, the officers got out of the car and asked defendant if he knew “anything about a gun.” Defendant testified that the officers then searched him and, finding the packets of heroin, arrested him.
The State‘s sole witness, Officer Griggs, testified that he had observed defendant and codefendant Antonio Rollins standing on a corner for 20 to 30 minutes. During that time, whenever a car pulled up one of the defendants would approach the car and take something from the driver. He would then walk back to the corner and then return to the car, handing something off to the driver. Griggs testified that he could not observe what exactly had changed hands. However, after the third car had pulled away, Griggs radioed to nearby officers to stop the car and search the occupant. When he received confirmation that the driver of that car had small packets of heroin wrapped in tinfoil, Griggs approached defendant and Rollins and arrested them. Griggs did not personally search defendant, but he testified that the officers who performed the search found three tinfoil packets containing heroin. On cross-examination, conducted by the assistant public defender, Griggs agreed that it was dark at
After defendant and Griggs had testified, J.B. gave the defendant‘s argument on the motion. He conceded that the police had reasonable suspicion enough to stop defendant, but argued that Griggs did not have probable cause to arrest defendant. At the close of the hearing, the trial court denied defendant‘s motion, finding that Griggs’ testimony had established the existence of probable cause to arrest defendant.
At trial, defendant was represented by two assistant public defenders; J.B. did not participate in the defense. A jury found defendant not guilty of delivery of a controlled substance but guilty of possession of a controlled substance within 1,000 yards of a school. Defendant appealed, and the appellate court affirmed defendant‘s conviction. Smith, 384 Ill. App. 3d 489. The court analyzed defendant‘s claims in the context of an ineffective assistance of counsel claim, noting that defendant was represented at trial only by licensed attorneys. The court also opined that J.B.‘s participation in the motion to quash hearing was minimal, and he primarily did nothing more than reassert the written motion prepared by a licensed public defender. We granted defendant‘s petition for leave to appeal pursuant to
ANALYSIS
Under
As we have often noted, “our rules are not mere suggestions.” People v. Houston, 226 Ill. 2d 135, 152 (2007); see also People v. Wilk, 124 Ill. 2d 93, 103 (1988) (“At the risk of stating the obvious, it should be pointed out that the rules adopted by this court concerning criminal defendants *** are in fact rules of procedure and not suggestions“). Indeed, thеy have the force of law and are to be construed in the same manner as statutes. Houston, 226 Ill. 2d at 152; People v. Norris, 214 Ill. 2d 92, 97 (2005). Here, the plain meaning of
In the cases before us, we first acknowledge that, although all parties assume that neither respondent nor defendant in fact consented to the participation of the 711 law student, neither has specifically alleged an actual lack of consent. However,
Respondent and defendant urge us to end our inquiry here. They argue that they have been denied counsel simply because their assistant public defenders were assisted by 711 law students who failed to comply with all of
Initially, we note that the facts in Ratliff are distinguishable from the present cases. In Ratliff, the defendant appeared for trial on three consolidated charges, but no counsel appeared to represent him. The defendant told the court that an intern with the county public defender association was representing him in another case, and the court summoned the intern. When the intern arrived, the court expressed an intent to go forward with the trial with the intern as counsel. The intern explained that he was a legal intern, that he was not representing the defendant in the cases scheduled for trial, and that he was not prepared to go forward with a trial. At the prosecution‘s urging, however, the court required the intern, over objection, to proceed with the trial. Ratliff, 100 Wash. 2d at 213-15, 667 P.2d at 630-31.
The Ratliff court acknowledged that “one who is authorized to practice only under certain conditions, such as a legal intern, may be considered ‘counsel’ for constitutional purposes,” but it emphasized that “this is so only when he or she complies with those conditions” (emphasis in original). Ratliff, 100 Wash. 2d at 218, 667 P.2d at 633. It therefore concluded that, because the intern was not “counsel” for constitutional purposes, the defendant had been denied counsel. Ratliff, 100 Wash. 2d at 219, 667 P.2d at 634.
Schlaiss, on the other hand, applied Ratliff to very different factual circumstances. There, the defendant was represented at trial and sentencing by an assistant public defender and a 711 law student. As in the present cases, the 711 law student failed to record the written
This court has held that, for constitutional purposes, the term “counsel” means “a duly licensed and qualified lawyer, and not an attorney in fact or a layman.” People v. Cox, 12 Ill. 2d 265, 269 (1957). Our rules establish the requirements that attorneys must meet to be considered “duly licensed and qualified.” See, e.g.,
This determination does not end our inquiry, however. In thesе cases, respondent and defendant were not represented by law students alone. Both were also represented by fully licensed assistant public defenders
“[t]he defendant *** is not merely represented by a student who has not been admitted to the bar; he is represented by an experienced member of the bar who serves as counsel of record, undertakes personal and immediate supervision of the student‘s performance, and assumes responsibility for the conduct of the defense.” People v. Perez, 24 Cal. 3d at 138, 594 P.2d at 4, 155 Cal. Rptr. at 179.
The presence of the licensed attorney, who certainly is counsel for constitutional purposes, is not somehow “cancelled out” by the law student‘s participation, even if the law student has not cоmplied with
Conversely, where the defendant is entitled to counsel but the 711 law student appears alone in violation of the rule, the defendant clearly has been denied counsel. In re Moore, cited by respondent and defendant, is an example. There, the trial court appointed a law student, believing him to be an assistant public defender, to assist a pro se respondent in an involuntary commitment proceeding at which the respondent had a statutory right to counsel. In re Moore, 63 Ill. App. 3d 899, 900 (1978). The law student was not supervised at any point by a licensed attorney, and therefore respondent did not receive the assistance of counsel to which he was entitled.
However, a suрervising attorney does not satisfy his or her obligation under
Finally, respondent and defendant argue that consent to participation by a 711 law student is equivalent to a
We now turn to the cases at bar. In Denzel W., the appellate court reversed the trial court‘s ruling adjudicating respondent delinquent and ordered a new trial, finding that the violation of
Respondent also argues that he was denied counsel when the trial court prevented the supervising assistant public defender from conducting the redirect examination of Tequila T., and in the alternative, he argues that his counsel was ineffective, citing several alleged errors made at trial. With respect to the redirect of Tequila T., the appellate court noted that the trial court‘s actions were “error,” but because the appellate court resolved respondent‘s claims on the issue of consent alone, it
We agree with the appellate court that the trial court‘s actions in Denzel W. are troubling. Although we appreciate the court‘s desire to teach the 711 law student through experience, it is important that courts before whom 711 law students appear be particularly mindful of the supervising attorney‘s obligation to ensure that counsel is effective. As the appellate court stated, “[a]dherence to preferred courtroom procedures should not trump the accused‘s right to effective assistance of counsel in a ‘teaching exercise’ involving a 711 student.” In re Denzel W., No. 1-05-3374 (unpublished order under
Unlike the appellate court in Denzel W., the appellate court in Smith did consider defendant‘s claims as part of an ineffective assistance of counsel analysis, finding that counsel was not ineffective. People v. Smith, 384 Ill. App. 3d 489 (2008). Defendant argues only that the court should have instead employed a per se rule; he does not argue that the court‘s Strickland analysis was flawed, and he has not raised any other claims of error. Because we reject defendant‘s sole argument that the failure to comply with
CONCLUSION
We reject respondent and defendant‘s claim that they were denied counsel because they did not consent to a
No. 107003—Reversed and remanded.
No. 107112—Affirmed.
JUSTICE FREEMAN, dissenting:
This case presents the simple issue of what happens when
This court promulgated
A criminal defendant‘s constitutional right to counsel is multifaceted. On the one hand, it includes the right to competent counsel. Strickland v. Washington, 466 U.S. 668 (1984). On the other hand, it allows a defendant the ability to participate in and make decisions concerning his defense, including the right to waive counsel. Faretta v. California, 422 U.S. 806, 821 (1975); see also People v. Cox, 12 Ill. 2d 265, 270 (1957) (acknowledging that under both the federal and Illinois constitutions, “an accused may likewise waive his right
“Under the supervision of a member of the bar of this State, and with the written consent of the person on whose behalf he/she is acting, which shall be filed in the case and brought to the attention of the judge or presiding officer, an eligible law student or graduate may render the following services:
***
*** He/She may appear in the trial courts and administrative tribunals, subject to the following qualifications:
(i) Appearances, pleadings, motions, and other documents to be filed with the court may be prepared by the student or graduate and may be signed by him with the accompanying designation ‘Senior Law Student’ or ‘Law Graduate’ but must also be signed by the supervising member of the bar.
(ii) In criminal cases, in which the penalty may be imprisonment, in proceedings challenging sentences of imprisonment, and in civil or criminal contempt proceedings, the student or graduate may participate in pretrial, trial, and posttrial proceedings as аn assistant of the supervising member of the bar, who shall be present and responsible for the conduct of the proceedings. (iii) In all other civil and criminal cases the student or graduate may conduct all pretrial, trial, and posttrial proceedings, and the supervising member of the bar need not be present.” (Emphasis added.)
210 Ill. 2d R. 711(c) .
The plain language
The consent portion of the rule ensures, particularly in criminal cases where the right to counsеl is constitutionally guaranteed, that a litigant knows and agrees to the proposition that someone who is not licensed to practice law will be participating in the case on his behalf.
My position is not new. Prior to the appellate court‘s action here in Smith, that was the law in Illinois. For example, in In re Moore, 63 Ill. App. 3d 899 (1978), a new trial was ordered because the record failed to disclose any affirmative signal that either the respondent or the trial judge was aware of the law student‘s 711 status. The appellate court specifically emphasized that “[n]o written consent form by respondent appear[ed] in the record.” Moore, 63 Ill. App. 3d at 904.3 In People v. Schlaiss, 174 Ill. App. 3d 78 (1988), the court reversed the defendant‘s conviction because he had not consented to representation by а law student and there was insufficient evidence in the record to show that the defendant even knew he was being represented by a law student.
I note, too, that courts from other jurisdictions have also held that lack of consent is grounds for reversal. For example in People v. Miller, 89 Cal. App. 3d Supp. 14, 152 Cal. Rptr. 707 (1979), the California Court of Appeals ordered a new trial because the record contained no written consent from the defendant allowing a law student to discharge the duties that a licensed attorney
Not all cases, however, require per se reversals. Those cases which have not ordered new proceedings did so because evidence in the record established that the defendant was aware of the student‘s status. See State v. Dwyer, 181 Wis. 2d 826, 512 N.W.2d 233 (1994); Jones v. State, 902 P.2d 686 (Wyo. 1995). That is not the case here. In fact, my research indicates only one jurisdiction, Louisiana, which regards the absence of required consent as cavalierly as the court does here today. See State v. Edwards, 351 So. 2d 500 (La. 1977).
Like the court‘s pronouncements that its rules are not mere suggestions, the court is fоnd of saying that its rules are the equivalent of statutes and are to be interpreted as such. 237 Ill. 2d at 294. That, of course, would mean that all of
The presence of the supervising attorney has nothing to do with whether a litigant consented to have a student participate in his trial. In criminal cases, the presence of the supervising attorney has nothing to do with whether a defendant has agreed to waive his right to have a licensed attorney participate in all facets of his defense. Thus, the court has written out the consent provisions of
Turning to the consolidated matters here, in defendant Smith‘s case, the violation of the rule is clear. The record does not contain Smith‘s written consent to the student‘s representation, and the transcript does not indicate that the trial judge was made aware that a 711 student was participating in the suppression hearing. I would therefore grant Smith a new trial.
Respondent Denzel W.‘s case is more problematic. By failing to address the consent portion of the rule, the court bypasses the more fundamental question of whether the rule even applies to juvenile proceedings.
Parenthetically, the court‘s treatment of the juvenile case warrants criticism for a further reason. The court states that the appellate court is to determine whether the “trial court‘s actions *** resulted in respondent‘s receiving ineffective assistance of counsel.” 237 Ill. 2d at 300. I am not sure what that means—Does the appellate court have to see if the trial court‘s action violated Strickland? If so, how? By not allowing the supervising attorney to take over the redirect examination of Tequila, the trial court effectively denied respondent the benefit of the supervising attorney‘s expertise, a benefit that
Finally, I take issue with two other aspects of the court‘s decision today. First, there is the court‘s references to the supervising attorney as a kind of filter that prevents the 711 student from making mistakes. It is not always possible to glean from the transcripts the extent to which a supervising attorney can control the student‘s words and actions. The transcript in the juvenile case reflects that even when a supervising attorney wants to take control, he might not be able to do so. More importantly, the immediate presence of an experienced, supervising attorney cannot always prevent or undo the harm caused by the unskilled student assistant, such as failing to lay the proper foundation for impeachment, asking an overbroad question on cross-examination, or clumsily hаndling the direct examination of a hostile or difficult witness. Applying the Strickland standard, with its strong presumption in favor of competence, will not always provide relief in such circumstances. As the dissenting justice in Perez noted, there “may be but one moment of time in the course of a trial when the right act, word or decision can be made and the case won. *** If that moment of opportunity passes, no amount of post-verdict advice to or critique of the law student‘s performance will give solace to a defendant in prison.” Perez, 24 Cal. 3d at 151, 594 P.2d at 12, 155 Cal. Rptr. at 187 (Mosk, J., dissenting).
Second, there is the court‘s references to the educational worth of
JUSTICE BURKE joins in this dissent.