The Bar News

Quick Takes on Illinois Supreme Court Opinions Issued Thursday, June 15

Leading appellate attorneys review the Illinois Supreme Court opinions handed down on Thursday, June 15. The cases are People v. Alexander and People v. Nelson

People v. Alexander

By Jay Wiegman, Office of the State Appellate Defender

In 2011, the Occupy Chicago movement demonstrated in Chicago’s financial district. About three weeks into the protest, the demonstrators were directed to an area known as Congress Plaza in Grant Park, but were then told they would have to leave at 11:00 p.m., pursuant to an ordinance that closes the park overnight, so that park employees could clean and maintain the park, and for safety concerns. Protesters who remained in the park at 1:00 a.m. were arrested for refusing to leave the park.

The circuit court dismissed the charges, finding that the ordinance was unconstitutional on its face and as applied to the defendants, in part because the Chicago Police Department occasionally permitted after-hours assemblage, including President Obama’s election night rally in 2008.

The appellate court, First District, reversed, holding that the ordinance did not violate the defendants’ right to assemble under the First Amendment of the U.S. Constitution. The Illinois Supreme Court entered a supervisory order, which directed the appellate court to consider whether the Park District Ordinance violated the Illinois Constitution. The appellate court again reversed the circuit court’s judgment.

In People v. Alexander, 2017 IL 120350, the Illinois Supreme Court affirmed the appellate court. Writing for a six-person majority, Justice Garman first considered whether the Illinois Constitution affords greater protection than does the assembly clause of the First Amendment of the U.S. Constitution, in which case strict scrutiny applies to an ordinance that restricts the right to conduct demonstrations in public forums, at least when the demonstration is political. Article I, section 5 of the Illinois Constitution provides that the “people have the right to assemble in a peaceable manner, to consult for the common good, to make known their opinions to the representatives and to apply for redress of grievances.” Given that the relevant part of the First Amendment prohibits any law that abridges “the right of the people peaceably to assemble,” the majority saw “no significant difference between the two constitutions with regard to the right of assembly.” Alexander, 2017 IL 120350, ¶38.

The court considered that, under the 1870 Constitution, there had been no comma within the phrase “the right to assemble in a peaceable manner to consult for the common good,” and concluded that the addition of the comma in 1970 brought the Illinois Constitution into step with the U.S. Constitution. Alexander, 2017 IL 120350, ¶54. As a result, the court held that the right to assemble in Article I, Section 5 of the Illinois Constitution of 1970 is to be interpreted and applied in lockstep with the assembly clause of the First Amendment of the U.S. Constitution. Alexander, 2017 IL 120350, ¶57. In doing so, the court declined to consider whether the independent rights “to consult for the common good” and “to make known their opinions to their representatives” provided for expanded protections in Illinois, determining that the defendants had forfeited these issues by not raising them as separate issues in the Petition for Leave to Appeal. Alexander, 2017 IL 120350, ¶¶58-64. As the court held that the lockstep doctrine applied, the court then applied intermediate scrutiny to the Park District’s content-neutral regulations that limit the time, place or manner of expression and rejected the defendants’ challenge to the ordinance.

Justice Kilbride dissented. The dissenting justice disagreed with the majority’s determination that the defendants had forfeited their as-applied constitutional challenge in the PLA, and noted language in the majority opinion that seemingly acknowledges that the defendants raised the issue. Alexander, 2017 IL 120350, ¶79 (Kilbride, J., dissenting). Addressing the as-applied claim substantively, Justice Kilbride determined that the record was “woefully inadequate” to resolve the defendants’ as-applied challenge under the Illinois Constitution. Therefore, Justice Kilbride would remand the case for an evidentiary hearing.

People v. Nelson

By Kerry Bryson, Office of the State Appellate Defender

Miesha Nelson, Tiffany Cox, Rosalind Ball, and Carmelita Hall were charged with murder and armed robbery of Morris Wilson. They had simultaneous severed bench trials and were each convicted on all counts. Nelson and Hall were both represented by attorneys from the Chicago-Kent College of Law.

On appeal, Nelson argued that her attorneys operated under an actual conflict of interest in representing both her and Hall. Specifically, Nelson asserted that her attorneys could have pursued a defense that Nelson was not accountable for Hall’s unplanned act of suddenly stabbing the victim, but that counsel chose not to because that defense was hostile to Hall’s claim of self-defense and counsel was constrained by loyalty to Hall.

The appellate court, relying on People v. Echols, 74 Ill. 2d 319 (1978), concluded that Nelson had not shown an actual conflict because the mere availability of a strategy that would have helped the defendant at the expense of a co-defendant does not create hostility between their interests.

The Illinois Supreme Court also rejected the conflict-of-counsel argument, but did so on different grounds. First, the court noted that Nelson had not raised the conflict issue until after trial, and under Cuyler v. Sullivan, 446 U.S. 335 (1980), this meant she had to show that an actual conflict of interest adversely affected her lawyer’s performance. The appellate court had not cited Sullivan.

Nelson argued, and the state conceded, that Echols is no longer good law in light of Sullivan because it failed to recognize that a common defense does not necessarily mean there is no conflict between the interests of two defendants. Instead, a defendant can show a conflict under Sullivan where there was a plausible alternative defense that was rejected due to, or inherently in conflict with, counsel’s other loyalties. Defendant need not show that the alternative defense would have been successful, but only that it was a sufficiently viable alternative.

Within this framework the court looked at the proposed absence-of-accountability defense to determine whether it was of “sufficient substance to be a viable alternative” to self defense. The court noted that Nelson’s own statement established that she left the apartment together with the other women in order to pursue Wilson after their initial confrontation had ended, Nelson was the one who originally grabbed the knife, Nelson knew Hall had the knife throughout the confrontation, Nelson participated in the physical attack on Wilson, she went through Wilson’s pockets after the fight, and she made no effort to separate herself from the group either during or after the incident. Under the common design rule, even if the only common plan was to commit an assault on Wilson, Nelson was accountable for all of the actions of the group, and thus her proposed alternative defense was not available.

This opinion alters the framework for evaluating “actual conflict” claims in Illinois. It is no longer enough that there be a common defense between co-defendants for counsel to avoid an actual conflict of interest because “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.” The pertinent question now is whether one defendant has an alternative defense of sufficient substance to be a viable alternative but that defense is inherently in conflict with the interests of a jointly-represented co-defendant. If so, then counsel suffers from an actual conflict of interest in representing both individuals.

Posted on June 15, 2017 by Sara Anderson
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