People v. Nelson

Mr. JUSTICE GREEN,

specially concurring:

I concur in the result reached but choose to speak separately on certain matters.

In People v. Precup (1978), 73 Ill. 2d 7,382 N.E.2d 227, and People v. Berland (1978), 74 Ill. 2d 286, 385 N.E.2d 649, the supreme court has recently held that joint representation of multiple criminal defendants is not per se constitutionally improper. I consider the significance of Robinson to go substantially beyond restating the above principle and indicating that an ad hoc examination of the facts, circumstances, and degree of conflict in each case must be made. The Robinson court stated:

“Upon review of the authorities and consideration of the diversity of organization of the offices of the public defenders, we are not persuaded that in order to avoid conflicts of interest which result in failure to provide effective assistance of counsel we are required to hold that the individual attorneys who comprise the staff of a public defender are members of an entity which should be subject to ttie rule that if one attorney is disqualified by reason of a conflict of interest then no other member of the entity may continue with the representation.” See People v. Robinson (Oct. 2, 1979, Nos. 50830, 50901, 51044 cons.),_Ill. 2d_,__

As the Robinson court determined the defendants there not to have been deprived of effective assistance of counsel even if the public defenders’ offices involved were considered to be the same as ordinary law firms, the above may be considered to be dicta. However, the lengthy discussion which preceded it and its consideration prior to discussion of other points indicate that it is, at least, important dicta. Because the court’s determination, rejecting necessarily equating public defenders’ offices with other groups of lawyers, is based partially upon “consideration of the diversity of organization” of defenders offices, I find the “niceties of the organization” of public defenders to be very significant. I deem it to be “dispositive” here in that if the McLean County Public Defender’s Office was organized as in South or Puckett, I would affirm and consider my position to be supported by Robinson.

However, the statement in Robinson did not say that an interest of a member of a public defender’s office which differed from the interest of a defendant represented by another member of that office never created a conflict of interest for the latter attorney. Even assuming the State’s affidavits to be properly before us, I agree that the record does not show the defender’s office in question to have the decentralization existing in Puckett and South. Here, the defendant and a co-defendant not joined for trial had a conflict of interest which concerned the presentation of defendant’s defense. Defendant’s best interests seemed to require that the co-defendant testify, while the best interests of the co-defendant were to the contrary. In Robinson, on the other hand, the issues did not involve a situation where one public defender had a substantial conflict with another defender as to the presentation of the defense at trial. I thus deem the pre-Robinson precedent to control the decision here.

I agree with the majority that Robinson did not overrule the doctrine that if sufficient conflict is shown, prejudice is conclusively presumed. Here, the indications of actual prejudice were almost nonexistent. It appears most unlikely that the co-defendant would have testified if he had independent counsel or that if counsel representing defendant had been independent he could have been more effective in getting the co-defendant to testify. Furthermore, any failure on the part of counsel for co-defendant to permit him to testify would not appear to result from a dual responsibility that counsel had to defendant. Nevertheless, the rule that prejudice be presumed if sufficient conflict is shown is justified because of the difficulty of proving actual prejudice when it may be most subtle.

Great burdens are placed on the trial court in a criminal case when, during the course of a jury trial, the court is made aware that a defense counsel has a conflict of interest. Robinson indicates that a waiver of conflict may properly be obtained from a defendant more easily than dicta in People v. Stoval (1968), 40 Ill. 2d 109, 239 N.E.2d 441, might have indicated. However, if waiver is not obtained, the court will likely have great difficulty in obtaining new counsel able to step in and conduct the defense without a continuance for preparation that will necessitate declaration of a mistrial. Accordingly, it is highly desirable that counsel inform the court as soon as the likelihood of a conflict arises and that the trial court make all proper inquiries to determine the existence of such a situation.