People v. Coates

JUSTICE SIMON, dissenting:

I disagree with the majority’s approval of an examination by the trial judge in camera and outside the presence of counsel of documents which a defendant has a constitutional right to use in his defense. Rocky Coates was convicted almost solely on the basis of testimony offered by his former wife, Nanette Coates, and her daughter, Buffie. Rocky’s defense strategy was to establish that Nanette had falsely accused her earlier boyfriends of molesting her children.

To fully develop this defense, counsel sought access to Nanette’s Department of Children and Family Services (DCFS) records, contending that these would provide specifics of her earlier complaints and perhaps provide additional information to discredit Nanette. Impeaching Nanette would also affect the credibility of Buffie’s testimony, since it is clear that Buffie was coached by her mother. The extent to which Buffie was coached is demonstrated by the following colloquy which occurred during cross-examination of Buffie by defense counsel:

“Q. Well when did Rocky come to the bathroom?

A. The door was locked. He took a screw driver and got in.

Q. So Rocky had a screw driver and you saw the screw driver, is that correct?

A. Yes.

* * *

Q. When did you first see the screw driver?

A. I didn’t see but my mom Baldly. Just a minute, Buffie. Did you or did you not see Rocky with a screw driver?

A. With a screw driver?

Q. Yes.

A. No.

* * *

Q. And the only reason you told everybody that Rocky used a screw driver is only because your mother told you about the screw driver, isn’t that correct?

A. Yes.”

Clearly, Nanette’s credibility was a central issue in the case, and information regarding her previous false accusations — as well as other DCFS information which might establish a motive for such accusations — was relevant and admissible in order to impeach Nanette and cast doubt on Buffie’s testimony. See People v. Hurlburt (1958), 166 Cal. App. 2d 334 , 333 P.2d 82 ; People v. Evans (1888), 72 Mich. 367 , 40 N.W. 473 ; see also State v. Caswell (Minn. 1982), 320 N.W.2d 417 (defendant has a constitutional right to impeach with evidence of a prior false accusation).

Balancing the DCFS privilege (Ill. Rev. Stat. 1981, ch. 23, par. 2051 et seq.) against defendant’s interests in impeaching the State’s lead witnesses, a majority of this court accepts the solution adopted by the circuit judge that he examine the records without benefit of counsel’s preparation and advocacy, and then determine which documents are relevant to the defense. This procedure is clearly inadequate, and it does not comport with earlier pronouncements of this court, our rules of procedure, or the decisions of the United States Supreme Court.

In People v. Dace (1984), 104 Ill. 2d 96 , we accepted the appellate court’s ruling that a defendant had the right to inspect the otherwise privileged mental health records of the State’s leading witness. (People v. Dace (1983), 114 Ill. App. 3d 908 .) The appellate court also ruled that the trial court should hold an in camera inspection of the privileged records in the presence of the prosecutor and counsel. “This approach balances a defendant’s sixth and fourteenth amendment rights with a witness’ right to confidentiality ***.” ( 114 Ill. App. 3d 908, 915 .) The majority in this case attempts to distinguish Dace on the basis that here it is the DCFS which invokes a privilege, not the witness or a private therapist. The distinction lacks merit.

There is no rationale for the majority’s rule excluding counsel during in camera inspection when the privilege is urged by the State, but allowing the presence of counsel when a witness raises a privilege. The defendant’s interests remain unchanged, as does the relevance of the privileged matter to an effective cross-examination, and the State’s interest in suppressing the records is certainly no stronger than Nanette’s. The State has brought this prosecution and should not now be heard to argue that its collateral interests outweigh defendant’s right to confront the witnesses against him. Both Davis v. Alaska (1974), 415 U.S. 308 , 39 L. Ed. 2d 347 , 94 S. Ct. 1105 , and People v. Norwood (1973), 54 Ill. 2d 253 , were cases in which the prosecutor sought to prevent disclosure of the witness’ juvenile records, and those cases hold supreme the interests of the defendant over those of the witness.

For the defendant to effectively cross-examine a prosecution witness, which “is the principal means by which the believability of a witness and the truth of his testimony are tested” (Davis v. Alaska (1974), 415 U.S. 308, 316 , 39 L. Ed. 2d 347, 353 , 94 S. Ct. 1105, 1110 ), he must be allowed to compare the witness’ testimony against known facts in the possession of the State. In People v. Norwood (1973), 54 Ill. 2d 253 , this court held that an accused could inquire into the criminal record of a juvenile offender on cross-examination even though the records themselves are protected from disclosure by State law. Since, under Norwood, a defendant can inquire into otherwise privileged matter, the defendant must be allowed access to government records so that he can determine whether that witness is honestly responding to cross-examination. (Cf. Davis v. Alaska (that counsel could inquire of a witness whether the latter was biased is not sufficient — counsel should have been allowed to expose facts establishing why the witness was biased).) On cross-examination in this case, defense counsel attempted several times to elicit from Nanette the stories of her previous allegedly false accusations, but Nanette responded variously “I don’t remember” and “no” she had not made such complaints. Perhaps most damaging to this strategy is that when Nanette began to recall one such occurrence, Rocky’s counsel was unable to determine whether Nanette’s version was materially different than that recorded by the DCFS. For example:

“Q. Do you remember telling either the doctor or the nurse at St. Elizabeth’s Hospital or the police officers that you talked to at that time or the social worker that you talked to—

* * *

Q. —that Angelo Graziano had sexually molested your children and that he had bitten Buffie’s arm and shin?

A. No, I did not. I told them what my children had told me.

Q. So you did not tell them that?

A. I told them that my daughters said they had been molested by Angelo.”

So slight a detail may well have been overlooked by the judge during his examination of the DCFS documents. Although counsel might also have dismissed that detail at the time of an in camera inspection, when the issue arose he would have had first-hand knowledge of whether Nanette’s testimony was at odds with the contents of the DCFS record he had already seen. There is no logical or legal support for the gist of the majority opinion that a trial judge can adequately sift through privileged documents, unaided by the preparation and insight of the attorneys who have developed the case. The judge is not familiar with every nuance of the parties’ strategies, and he cannot be expected to vigorously advance defendant’s interests from his position of judicial neutrality. Powell v. Alabama (1932), 287 U.S. 45 , 77 L. Ed. 158 , 53 S. Ct. 55 (a judge cannot perform as an effective surrogate for defense counsel).

Sound administration of the judicial system is also sacrificed by the decision of this court. The defendant is put in an untenable position, having to prove prejudice because records in the State’s possession, which the defendant has not been allowed to examine, contain relevant information material to his defense. (People v. Dace (1983), 114 Ill. App. 3d 908, 915 .) To avoid this absurdity, and provide for a record, Supreme Court Rule 415(f) (87 Ill. 2d R. 415(f)) states:

“Upon request of any person, the court may permit any showing of cause for denial or regulation of disclosures, or portion of such showing, to be made in camera. A record shall be made of such proceedings. If the court enters an order granting relief following a showing in camera, the entire record of such showing shall be sealed, impounded, and preserved in the records of the court, to be made available to the reviewing court in the event of an appeal.”

The committee notes clearly explain that the purpose of the rule is to develop a record that will protect litigants from error made by a trial court. (87 Ill. 2d R. 415, Committee Comments par. (f).) A showing of cause for the protective order may, according to the rule, “be made in camera,” and that — of course — presupposes the presence of parties’ counsel at the in camera proceeding. Because counsel was not present in this case, the rule could not be utilized and no record was made, but this was not a result of a poorly drafted rule. Rule 415(f) was not written to cover proceedings like that employed in this case because it was never intended that a protective order would issue from an inspection of documents without the attendance of opposing attorneys. In fact, I do not understand how it is possible to satisfy the requirement of the rule that a record be made of the in camera proceedings when counsel are not even permitted to be present. An erroneous procedure was employed by the trial court, and the majority has endorsed a method by which protective orders are immune to the rigors of appellate review.

My colleagues dismiss the application of Rule 415(f) in this case because the defendant did not request that a record be made and impounded. The answer to the majority argument is contained in the literal language of the rule: once a party requests a protective order (the State in this case) and the court allows an in camera proceeding rather than deciding in open court, “[a] record shall be made of such proceedings.” (Emphasis added.) (87 Ill. 2d R. 415(f).) I construe the word “shall” as mandatory rather than directory; also, as noted above, it is difficult to understand how a record could have been made once defense counsel’s request to be present at the in camera proceeding was denied. All defense counsel could have done in this case was what he did — request that the trial court follow mandatory procedures dictated by the rule.

I am also unable to agree with the majority’s conclusion finding no actual conflict of interest affecting defendant’s attorney. While it is true that the per se conflict of interest rule does not apply to attorneys employed by the public defender (People v. Robinson (1979), 79 Ill. 2d 147 ), all the defendant must establish is an actual conflict; prejudice need not be demonstrated. (People v. Nelson (1980), 82 Ill. 2d 67 .) In my opinion, an actual conflict arose in this case because one member of the public defender’s office was trying to establish what another member was attempting to deny. Rocky’s defense was that Nanette fabricated this charge to divert attention from her alleged parental failures; at the same time, however, another assistant public defender was arguing on Nanette’s behalf before the juvenile court that Nanette Coates was a fit parent.

As I noted above, we have elected to treat public defender’s offices under the actual-conflict rule rather than applying a per se analysis. In Robinson the court set forth the rationale for this decision: the rather slight risk that public defenders will experience prejudicial conflicts is outweighed by the public policy of providing an experienced cadre of criminal defenders. (People v. Robinson (1979), 79 Ill. 2d 147, 155-59 .) But in those cases where an actual conflict arises, the risk of prejudice increases and the balance shifts. That is why the decision must be made on a case-by-case basis. People v. Miller (1980), 79 Ill. 2d 454 .

Factors to be considered in a case-by-case analysis include whether counsel’s abilities are hobbled or restrained by commitments to others (People v. Washington (1984), 101 Ill. 2d 104 ), and whether the “attorney might be subject to subtle influences which could be viewed as adversely affecting his ability to defend his client in an independent and vigorous manner.” (People v. Kester (1977), 66 Ill. 2d 162, 167 .) Those factors are present in this case. Apart from the obviously direct contradiction the office must argue regarding Nanette’s fitness as a parent, the situation provided an atmosphere in which Rocky’s attorney was subject to “possible perhaps subliminal pressure” not to uncover Nanette’s failings before an assistant State’s Attorney. (People v. Fife (1979), 76 Ill. 2d 418, 424 .) No greater showing should be required; otherwise “it would be extremely difficult for an accused to show the extent to which this may have occurred.” People v. Kester (1977), 66 Ill. 2d 162, 168 .

This court has previously found an actual conflict of interest where counsel faced a substantially similar conflict. In People v. Lackey (per curiam) (1980), 79 Ill. 2d 466 , a proceeding for termination of parental rights, one member of the public defender’s office represented the parents while another member represented their child as guardian ad litem. In finding an actual conflict where, as here, one assistant public defender was seeking to prove unfitness for parental responsibility while another assistant was trying to deny that allegation, the court said: “Where a conflict of interest between multiple parties clearly appears and separate members of a public defender’s staff cannot effectively represent all, other counsel must be appointed.” 79 Ill. 2d 466, 468 .

Such is this case where the conflict is as clear as it was in Lackey. While Lackey involved a single court proceeding and this case involves two, that distinction is not controlling. The salient conflict is not that which occurs before the trial judge. Rather, it is the conflict which occurs outside the court — whether at the office, in the attorney’s professional relationships, or in his personal life— which need concern this court. (E.g., People v. Coslet (1977), 67 Ill. 2d 127 (defense attorney represented victim’s estate).) Those conflicts overtly or subliminally affect counsel’s motivation and the vigor with which his client’s case is presented. (People v. Fife (1979), 76 Ill. 2d 418 .) Therefore, the fact that the public defender’s office was presented with a conflict manifest in two separate courtrooms does not distinguish this case from Lackey.

I would remand this case for a new trial at which counsel’s motion to withdraw should be granted and the State’s request for a protective order would be acted on as directed by Dace.