dissenting:
The trial court correctly held that a per se conflict of interest did not exist in this case.
The majority reaches the decision to reverse the trial court by ignoring one of the three categories of conduct that the Illinois Supreme Court defines as creating a per se conflict of interest. The first category of per se conflict exists when “defense counsel has a prior or contemporaneous association with the victim, the prosecution, or an entity assisting the prosecution.” People v. Taylor, 237 Ill. 2d 356, 374 (2010). The second category exists “where defense counsel contemporaneously represents a prosecution witness.” (Emphasis added.) Id. The third category occurs “where defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant.” Id.
The majority recognizes that defendant’s counsel does not fit in category two or three. 409 Ill. App. 3d at 401. It then undertakes an analysis to show that a prosecution witness is an “ ‘entity assisting the prosecution.’ ” 409 Ill. App. 3d at 401. The flaw in this approach is that by defining a witness for the prosecution as an entity assisting the prosecution, it renders the second category of per se conflict of interest surplusage; any representation that falls under the second prong will necessarily fall under the first prong. Such an interpretation runs contrary to the normal rules of interpretation. See People v. Frieberg, 147 Ill. 2d 326, 349 (1992).
Not only does the majority’s opinion render one of the categories of per se conflict of interest surplusage, it also ignores supreme court case law directly on point. In Enoch, the court stated that defense counsel’s prior representation of a State’s witness “does not establish that a per se conflict of interest existed between [defense counsel] and [defendant].” People v. Enoch, 146 Ill. 2d 44, 52-53 (1991). The Enoch court further stated that “ ‘[w]here defense counsel has represented a State’s witness, a per se conflict of interests exists if the professional relationship between the attorney and the witness is contemporaneous with counsel’s representation of defendant.’ ” (Emphasis in original.) Id. (quoting People v. Thomas, 131 Ill. 2d 104, 111 (1989)). See People v. Flores, 128 Ill. 2d 66, 84-85 (1989).
The majority does not believe that Flores and Enoch preclude finding a per se conflict of interest based on the prior representation of a prosecution witness. 409 Ill. App. 3d at 403. In support of that opinion, the majority makes the following statement: “The courts in Enoch and Flores both held that defense counsel’s previous representation of a prosecution witness was not a per se conflict of interest because the record did not reveal any evidence indicating that counsel’s relationship with the witness was contemporaneous with counsel’s representation of defendant.” 409 Ill. App. 3d at 403. Far from supporting the majority opinion, this indicates that the court in Enoch and Flores recognized that whether or not the conflict was per se hinged on whether the representation was contemporaneous with the representation of defendant. 409 Ill. App. 3d at 403.
The majority asserts that this case “begs the question, why would it be constitutionally permissible to allow defense counsel who previously represented an individual who is assisting the prosecution to currently represent a defendant, but impermissible to allow defense counsel who previously represented an organization/municipality that is assisting the prosecution to currently represent a defendant? Such a distinction seems arbitrary and illogical.” 409 Ill. App. 3d at 402.
Deciding that something is not a per se conflict of interest is not the same as finding it constitutionally permissible. An activity that does not create a per se conflict of interest may very well be unconstitutional. Courts simply will not presume it is unconstitutional; the defendant is required to prove the conflict of interest to obtain relief. See Flores, 128 Ill. 2d at 84-85.
Supreme court precedent is clear. Prior representation of a prosecution witness is not a per se conflict of interest. I respectfully dissent.