People v. Brown, 2017 IL App (3d) 140921 (June). Episode 383 (Duration 6:25)

This attorney inadequately argued her own ineffectiveness.

Facts

• After a night of arguing and hostility defendant again became angry and began yelling at his girlfriend.
• She testified that defendant lunged at her and choked her.
• She also recalled “hitting the side of the house.”
• She was eventually able to leave and call for a ride.

A friend later took her to a hospital.

Howard testified that she did not strike defendant.

Police saw bruises on her neck and arms.

Defendant Denies It

After first denying that he even knew the victim, defendant eventually tells police that “during the course of the argument, she accused him of cheating and pushed him, so he grabbed her by the neck to push her off of him, and then when she wanted to walk away, he grabbed her.”

He testified that he and Howard did not argue on that day and they did not engage in any sort of fight, be it verbal or physical.

Defendant testified that he did not make any of the statements.

Mad At His Attorney

After the trial and before sentencing defendant kind of made a motion that his attorney did not call some of his witnesses.

Attorney Takes The Blame

When the state asked the attorney if she was adopting this issue in her post trial motion she said:

“…So in any case, my client got to trial not being able to call Latisha Wilson or Lori Giles. I guess basically Latisha, because we didn’t have an address and she wasn’t subpoenaed to demand her appearance…So, in any case, he had to proceed to trial without calling all available witnesses… So we’d ask the Court to reconsider the verdict or to set aside the verdict of the jurors on the basis that this was nothing short of just a miscommunication and that it’s a miscommunication between him and me that led to him not being able to call all the people that could be put on, the best case to determine whether he in fact was guilty or innocent.”

The trial judge denied the post trial motion saying the witness was not called because defendant didn’t tell his attorney where to find them and sentenced defendant to 4 1/2 years.

Conflict of Interest

Defendant next argues that counsel proceeded under a conflict of interest when she argued her own ineffectiveness in a posttrial motion.

Defendant contends that an attorney arguing his or her own ineffectiveness is a per se conflict of interest; alternatively, defendant contends that the record shows counsel nevertheless had an actual conflict of interest.

He argues that the matter should be remanded for new posttrial proceedings.

A defendant’s constitutional right to effective assistance of counsel includes the right to conflict-free representation.

Per Se Conflicts

There are two types of conflicts of interest:

per se conflicts and actual conflicts.

A per se conflict exists where certain facts about a defense attorney’s status alone present a disabling conflict. Where a per se conflict exists, a defendant is not required to demonstrate any prejudice flowing from the conflict.

Actual Conflict

“If a per se conflict does not exist, a defendant may still establish a violation of his right to effective assistance of counsel by showing an actual conflict of interest that adversely affected his counsel’s performance.”

In order to prevail on a claim of actual conflict of interest, a defendant must show ‘some specific defect in his counsel’s strategy, tactics, or decision making attributable to a conflict.

This is not a traditional per se conflict, and Appellate court decisions are split as to whether defense counsel’s allegation of his or her own ineffectiveness constitutes a per se conflict.

Because the facts of this case demonstrate an actual conflict of interest, we need not decide whether an attorney’s allegation of his or her own ineffectiveness constitutes a per se conflict.

Counsel’s Motion For Her Own Ineffectiveness

Defense counsel’s motion to set aside the verdict in the present case was premised on a single issue: her own ineffectiveness in calling defendant’s witnesses.

In order to prevail on this motion then, counsel was obligated to show

(1) that her performance was constitutionally deficient and
(2) that but for that deficient performance, a reasonable likelihood existed that the result of the trial would have been different.

Defense counsel’s performance may be deficient where she fails to call known witnesses whose testimony may exonerate the defendant.

In order to establish prejudice in such situations, a defendant must present affidavits establishing the testimony that those witnesses would have provided.

No Affidavits

Without such affidavits, there is no way of knowing whether that testimony would have impacted the outcome of the proceeding.

Defense counsel failed to make any reasonable effort with respect to either prong of the Strickland standard.

Rather than arguing that her performance had been deficient for failing to investigate and track down Wilson and Giles, she placed the blame on defendant and a “miscommunication.”

Ultimately, it was this characterization that led the court to deny the motion.

More importantly, counsel failed to provide affidavits concerning the expected testimony of Wilson and Giles.

Indeed, counsel failed to describe in any significant way what their testimony would have been.

Absent such evidence, the motion to set aside the verdict was fatally flawed, as counsel could not possibly have demonstrated prejudice.

We find that these clear and obvious defects in counsel’s performance were attributable to the conflict of interest inherent in arguing her own ineffectiveness.

Holding

To be clear, we express no opinion regarding the merits of the claim that defense counsel was ineffective for failing to call Wilson and Giles as witnesses. Defense counsel was certainly under no obligation to raise that argument in a posttrial motion. However, once counsel did choose to raise the issue of her own ineffectiveness, she had a duty to zealously represent her client in that proceeding.

While we do not foreclose the possibility that a defense attorney may zealously and competently argue his or own ineffectiveness, counsel in the present case failed to do so.

Accordingly, we vacate the circuit court’s denial of defendant’s posttrial motion and remand the matter for the appointment of conflict-free counsel, who may include whatever issues he or she deems meritorious in a new posttrial motion.

See Also

Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself? – Episode 039

More on the Illinois Rules of Professional Responsibility.