holding ineffective assistance where counsel argued that his client could not be found guilty of murder if he did not inflict the fatal wound even though the jury was instructed on felony murder and murder based on accountability
How later courts described this case
- holding ineffective assistance where counsel argued that his client could not be found guilty of murder if he did not inflict the fatal wound even though the jury was instructed on felony murder and murder based on accountability
- proceeding to the merits of a defendant’s ineffective assistance of counsel claim despite the fact that the claim was not raised in his postsentencing motion
- finding counsel’s representation deficient where his strategy could not have benefited the defendant even if he had been successful
- noting that the "judiciary possesses the authority to read language into a statute which has been omitted through legislative oversight"
Written by the judges who cited it.
Distinguished
Distinguished by People v. Douglas, 208 Ill. App. 3d 664 (1991)
The only case cited by defendant in support, People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290, is clearly distinguishable from this case.
The opinion
JUSTICE RYAN, dissenting:
I cannot bring myself to agree that the tactics of defense counsel which saved defendant from the death penalty constitute ineffective assistance. I therefore dissent.
In view of the overwhelming evidence against the defendant, it is obvious that defense counsel could not have argued that his client was not involved in these crimes, or that he was at some other place doing something else at the time the crimes were committed. Given the evidence with which he was confronted, defense counsel had to admit the defendant’s involvement and then had to attempt to minimize that involvement to the greatest extent possible. This counsel did by emphasizing that the defendant did not perform the act which killed the victim, but that the other party did. True, under these facts and the instruction of the court, the jury could find the defendant guilty of murder on the theory of accountability. However, it is not true, as the opinion states, that the jury “had no choice but to find defendant guilty of murder” under the defense counsel’s admission and the instruction of the court. The jury always has a choice. It is the jury’s duty to make the choice between guilty and not guilty. If the jury felt that the defendant should not be found guilty of murder because of his limited involvement, it could have found the defendant not guilty regardless of the admission of counsel and the instruction of the court.
The opinion also charges counsel’s representation with being deficient in that he “did not attempt to develop a theory of innocence.” How in the name of common sense could counsel, confronted with the evidence against the defendant in this case, attempt to develop a theory of innocence? The jury would have viewed such an attempt with great skepticism and counsel’s credibility would have been destroyed. In People v. Johnson (1989), 128 Ill. 2d 253, 269 , we noted that where there is overwhelming evidence of guilt and no defense, if counsel contests the charges he is liable to lose credibility with the jury on other issues.
The majority opinion discusses at length People v. Hattery (1985), 109 Ill. 2d 449 . However, in People v. Johnson, we said that the rule in Hattery must be narrowly construed. (People v. Johnson (1989), 128 Ill. 2d at 269 .) As noted by the majority, we also stated in Johnson that Hattery did not establish a per se rule of ineffective assistance whenever defense counsel admits his client’s guilt where there is overwhelming evidence. We also noted in Johnson that by giving too broad a construction to the holding in Hattery, defense counsel, as part of his strategy, could concede the defendant’s guilt, assuring thereby a new trial for his client. I feel that the holding in Johnson compels this court to find that the defendant in this case was not denied effective assistance of counsel.
I am afraid that Hattery and the opinion in this case are telling defense counsel that when they are confronted with overwhelming evidence of guilt, they must lie or fabricate some defense no matter how overwhelming the evidence. We must not convey that message to the bar. There are cases, such as the one before us, where the best defense, indeed, possibly the only defense, is to minimize the defendant’s involvement, hoping the jury will, in the exercise of mercy, find that the defendant should not be convicted or at least should not be sentenced to death. This is a judgment call that must be made by counsel. It is not an after-the-fact, hindsight, theoretic judgment to be made by this court.
The majority opinion notes that at the eligibility phase of the sentencing hearing, counsel argued that defendant was not eligible for the death penalty because residential burglary, of which defendant was convicted, was not one of the felonies named in the statute which specifies the felonies that qualify an accused for the death penalty if murder is committed in the course of one of the named offenses. The trial court did not agree with defense counsel’s argument; however, the majority opinion in this court agrees with defense counsel and holds that the defendant is not eligible for the death penalty. Thus, counsel, by his “ineffectiveness,” saved his client from the death penalty. In addition, by the simple tactic of admitting the defendant’s involvement in the offenses, which the majority opinion finds to be ineffective assistance, counsel gained for his client a new trial. Some “ineffective assistance”!