People v. Schutz, 2017 IL App (4th) 140956 (June). Episode 379 (Duration 7:55)
Turns out all three of defendant’s attorneys had a relationship with the jailhouse informant who testified against defendant.
Defendant was charged with sex offenses.
His attorney also represented another inmate in the same jail. This other inmate ended up testifying against the defendant as a jailhouse snitch.
When the attorney realized that one of her clients was snitching on the on the other client she withdrew from defendant’s case.
But Defendant’s new attorney also had represented the snitch in prior cases.
On appeal defendant now claims all three of his attorneys had conflicts of interests and his right to counsel was violated.
Per Se Conflicts Of Interest
A per se conflict of interest exists where certain facts about a defense attorney’s status, by themselves, engender a disabling conflict.
An attorney labors under a per se conflict of interest where defense counsel’s past or present commitments raise the possibility that the attorney is unwilling or unable to effectively represent the defendant.
“Unless a defendant waives his right to conflict-free representation, a per se conflict is automatic grounds for reversal. A per se conflict of interest occurs:
(1) where defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution;
(2) where defense counsel contemporaneously represents a prosecution witness; and
(3) where defense counsel was a former prosecutor who had been personally involved with the prosecution of defendant.
Did She Have To Withdraw From Both Cases?
Here, defendant focuses on the second situation, where defense counsel has a contemporaneous relationship with the defendant and a prosecution witness.
In cases where defense counsel has represented a State’s witness, a per se conflict of interest will not be held to exist unless the professional relationship between the attorney and the witness is contemporaneous with defense counsel’s representation of the defendant.
However, a contemporaneous relationship does not require simultaneous representation of a defendant and the prosecution’s witness. Here, the attorney withdrew from defendant’s case then represented the snitch.
Thus, the question the court answered was whether a per se conflict arises by virtue representing a prosecution witness after withdrawing from defendant’s case.
In this case, the jailhouse informant was not disclosed as a prosecution witness, nor does the record suggest anyone was aware he would later become a prosecution witness.
The court concluded the first attorney did not contemporaneously represent a prosecution witness such that it would create a per se conflict of interest.
Additionally, to establish a conflict, the defendant must show some specific defect in his counsel’s strategy, tactics, or decision making attributable to a conflict. Defendant was unable to demonstrate that the attorney labored under an actual conflict of interest.
The court found no conflict of interest but did not condone counsels’ representation.
Could Have Been Handled Better
In the judicial system, where we seek to avoid even the appearance of impropriety and extol the notion of fairness, cases such as the one before us tarnish that image.
Simply stated, it can be inferred from the facts of this case that one attorney worked out a deal for one of her clients that was to the detriment of another client. The difficulties presented by this case are avoidable. Diligent record keeping as to client representation—along with communication among the trial court, counsel, and the defendant—would have prevented the problems that developed in this case.
Counsel should stay informed as to prior clients and disclose to the court and the defendant any prior representation of individuals related to the defendant’s case. This would allow the defendant to state any grievances or request new counsel prior to trial, and it would give the trial court the opportunity to resolve the matter.
As a better practice, the first attorney should have informed the trial court that she previously represented defendant and currently represented the informant, who was now a prosecution witness against defendant.
The two later attorneys should have disclosed their prior representation of the snitch, regardless of the nature or length of the representation.
While the court did not suspect or intend to suggest any wrongdoing on the part of any of the attorneys involved in this matter, it concluded that their proposed solution appropriately places the burden on counsel in light of their ethical obligations in matters before the court.
Learn more about the Illinois Rules of Professional Responsibility.
You may also want to check out…
- Episode 056 Ethical Violation After Meeting With Prosecutor
- Episode 039 Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself?
- Episode 375 Nrupa Patel Helps Dissect Conflict Of Interest Confronting Former Prosecutors
- Episode 106 Did Drew Peterson’s Attorney Have A Conflict Of Interest When He Signed a Publicity Contract?
- Episode 176 Prosecutor Probably Had A Conflict of Interest (People v. Kibbons, 2016 IL App (3d) 150090 (April)