Quick take on Thursday's Illinois Supreme Court opinion In re Austin M.
Our panel of leading appellate attorneys review Thursday's Illinois Supreme Court opinion in the Criminal case In re Austin M.
By Kerry J. Bryson, Office of the State Appellate Defender
In a lengthy opinion involving two partial concurrence/partial dissents and a full dissent, the Supreme Court resolved the question of whether an attorney may function as both a guardian ad litem (GAL) and defense counsel for a minor in juvenile delinquency proceedings. The majority held that an attorney may not assume both roles, finding that such “hybrid representation” constitutes a per se conflict of interest. Although the minor’s attorney in this case had not been appointed as a GAL by the court, the majority concluded that he was functioning as a GAL under the particular facts of this case.
In his partial concurrence/partial dissent, Justice Freeman explained that he would have reversed the minor’s conviction outright because the complainants in this criminal sexual abuse case were not credible (the trial court had expressed credibility concerns) and the minor’s one-sentence confession was not corroborated by any credible evidence where the only possible corroborating evidence was the testimony of the complainants. Justice Freeman specifically noted that there is an implicit credibility component to the corpus delicti rule.
Justice Karmeier agreed with Justice Freeman’s corpus delicti determination and would have reversed the minor’s conviction outright, as well. Justice Karmeier noted his disagreement with the majority’s finding that the minor’s attorney misunderstood his role in this case; he would have found that there was no per se conflict.
Justice Thomas authored a lengthy dissent. At the outset, he was critical of the majority’s decision to first determine the merits of an issue (whether there is a per se conflict where counsel serves both as defense counsel and as a GAL for the minor) without deciding whether the case even presents the issue, noting that this sort of analysis could lead to the issuance of advisory opinions. Further, Justice Thomas would have concluded that counsel was not acting as a GAL, primarily because he was not appointed as such by the court, but also because it is possible to have a “best-interests oriented” defense attorney without counsel misunderstanding his role. Justice Thomas concluded that the minor’s attorney functioned solely as defense counsel in this case. Because he concluded that the per se conflict issue was not presented, he expressed no opinion on the merits of that issue. Justice Thomas also disagreed that there was a corpus delicti issue in this case, noting that the minor hadnot raised such an issue, that the minor’s confession was adequately corroborated, and that Illinois law is not clear as to what extent credibility is to be considered in a corpus delicti analysis.
A quick review of this decision demonstrates that it is significant for a number of reasons. First, it clearly holds that a single attorney cannot function as both a GAL and defense counsel for a minor in delinquency proceedings. Second, it provides a framework for determining whether an attorney may be acting as a GAL even where the court has not appointed counsel to that position. Third, it confirms that delinquency proceedings continue to be viewed as more akin to criminal prosecutions (although the Court noted that they are not as adversarial) especially in a case like this one where the minor is subject to a “potential lifetime” of collateral consequences.