People v. Nelson, 2017 IL 120198 (June). Episode 352 (Duration 13:20)

Defendant says his attorneys had a conflict because they went with self defense rather than actual innocence.

Facts

Defendant is one of four women who beat and stabbed a man on the sidewalk and left him for dead. He did die.

Defendant was convicted of murder and sentenced to 25 years.

The Cook County circuit court conducted severed but simultaneous bench trials.

Issue

On appeal, defendant argued, in part, that her convictions should be reversed because her attorneys, who were part of the same clinic that represented codefendant Hall, labored under an actual conflict of interest.

Her Theory

According to defendant, her statement to the police set out a plausible, alternative defense of actual innocence, based on a lack of accountability, which was hostile to Hall’s defense of self-defense.

Defendant maintained that her attorneys could have pursued this alternative defense but did not do so because they were constrained by their loyalty to Hall.

Her Attorney

Defendant was represented by Richard Kling and Susana Ortiz, both from the Law Offices of Chicago-Kent College of Law.

Hall was represented by Daniel Coyne, also from the Law Offices of Chicago-Kent.

Because this case was originally a capital case, these attorneys were appointed by the court under the now repealed Capital Crimes Litigation Act. 725 ILCS 124/5.

Conflict of Interest

For purposes of conflict of interest analysis, the law considers the representation of codefendants by law partners or associates the same as the representation of codefendants by one attorney.

However, the mere fact of joint representation of multiple defendants does not create a per se violation of the right to effective assistance of counsel.

Moreover, the Supreme Court has noted that, when joint representation is undertaken but the defendants are tried separately, it is less likely counsel will face a conflict.

Here, the issue was only raised on appeal, so defendant must establish an actual conflict. The Illinois Supreme Court has changed the standard here. Additionally, more information on the rules of professional responsibility exist here.

The Echols Rule

In Echols, this court held that the mere availability of a strategy that would have helped the defendant at the expense of a codefendant does not create hostility between the interests of the two.

Thus, even assuming that defendant had a plausible, alternative defense that could have been pursued by her attorneys, that fact could not establish that his interests were hostile to those of other codefendants.

So long as there was a viable joint defense, the interests of codefendants were not hostile.

The New Rule

The Echols rule fails to recognize that a common defense for two clients does not necessarily demonstrate the absence of a conflict between their interests. See People v. Echols, 74 Ill. 2d 319 (1978) and Cuyler v. Sullivan, 446 U.S. 335 (1980).

The rule does not take into account the fact that a conflict of interest may arise when defense counsel must make the choice of strategy or defense to pursue in representing defendant.

The Echols rule is therefore in conflict with the Sullivan standard for establishing an actual conflict and must be overruled.

Analysis

Having rejected the Echols rule, the court had to consider whether defendant had established an actual conflict under Sullivan.

First

In order to establish that an actual conflict of interest adversely affected counsel’s performance, a defendant first, must demonstrate that some plausible alternative defense strategy or tactic might have been pursued. He need not show that the defense would necessarily have been successful if it had been used, but that it possessed sufficient substance to be a viable alternative.

Second

Then he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.

Thus, to determine whether defendant and codefendant Hall’s interests were hostile in this case, the court first must evaluate the strength of the putative defense, if any, discarded by defendant’s attorneys and determine whether its presentation would harm the interests of Hall.

As the Seventh Circuit has stated, “the presentation of a united front may not be consistent with one defendant’s interest if it requires the abandonment of a plausible defense that benefits him at the expense of his codefendant.”

This Case

Defendant contends that a plausible, alternative defense existed in this case that was at odds with Hall’s self-defense strategy.

Defendant asserts that, in her statement to police, she established that Hall suddenly and without explanation stabbed Wilson while he was on the ground, that defendant tried to stop Hall when she discovered Hall was stabbing Wilson, and that defendant did not know Hall intended to kill Wilson.

From this, defendant asserts a defense of innocence based on a lack of accountability was of “sufficient substance to be a viable alternative’ to self-defense.”

Accountability

The high court did not agree. Section 5-2(c) of the Criminal Code of 1961 provides that a person is legally accountable for the criminal conduct of another if “either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he or she solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

720 ILCS 5/5-2(c) (West 2008).

Common Design Rule

This statute incorporates the common-design rule.

Under the common-design rule, if “two or more persons engage in a common criminal design or agreement, any acts in the furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts.”

Where there is a common design to do an unlawful act, then “whatever act any one of them does in furtherance of the common design is the act of all, and all are equally guilty of whatever crime was committed.” People v. Tarver, 381 Ill. 411, 416 (1942).

Thus, a defendant may be charged with murder based on a theory of accountability where the defendant enters a common design to commit only a battery yet a murder is committed during the course of the battery.

This Case

Defendant admitted she was the one who initially grabbed the knife from the kitchen and was aware at all times during the incident that Hall was in possession of it.

Defendant also admitted to physically attacking Wilson and grabbing his hood to hold him down.

Thereafter, defendant went through Wilson’s pockets and removed his jacket to search for Hall’s phone.

Defendant then returned with the others to Cox’s apartment.

At no time did defendant attempt to escape the incident or separate herself from the group or remove herself from the attack.

If the four co defendants’ common design was to commit a criminal assault on Wilson, then it would not matter under Illinois law whether Hall “suddenly” stabbed Wilson during the attack or whether, at some point, defendant told Hall to stop and attempted to grab the knife.

Holding

On this record, defendant is guilty of first degree murder under the common-design rule. Defendant’s proposed alternative defense was simply not available. Accordingly, defendant has not shown an actual conflict of interest.

Defendant failed to show that an innocence defense based on a lack of accountability was a plausible alternative defense.