# Opposition — BERLAND v. ILLINOIS (No. 78-1744)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979

## Text

Supeeme Ce

No. 78-1744 SEP 6 1979

MICHAEL RODAK, JR CLERK

IN THI

Supreme Court of the Gnited States

OcTOBER TERM, 1978

ALBERT BERLAND,
Petitioner,
VS.
THE PEOPLE OF THE STATE
OF ILLINOIS,
Respondent.
ON PETITION FOR A
WRIT OF CERTIORARI TO THE
SUPREME COURT OF ILLINOIS

BRIEF FOR RESPONDENTS IN OPPOSITION

WILLIAM J. SCOTT,

Attorney General of the State of Illinois,
DONALD B. MACKAY,
MELBOURNE A. NOEL, JR.

Assistant Attorneys General,

188 West Randolph Street, Suite 2200
Chicago, Illinois 60601

(312) 793-2570,

Attorneys for Respondent.

BERNARD CAREY,
State’s Attorney of Cook County, illinois,
500 Richard J. Daley Center,
Chicago, Illinois 60602
(312) 443-5496
Marcia B. Orr,

JOAN S. CHERRY,
Assistant State’s Attorneys,

Of Counsel.

Printed by the Authority of the State of Ilinois— 8-79-40

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QUESTIONS PRESENTED FOR REVIEW

STATEMENT OF THE CASE ......00000000.........

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THE DECISION OF THE ILLINOIS APPEL-

LATE COURT REVERSING THE CON-
VICTION OF PETITIONER FOR ARSON
WITH INTENT TO DEFRAUD AN IN-
SURER DID NOT OPERATE AS AN
ACQUITTAL OF THE PETITIONER;
THEREFORE, THE ILLINOIS SUPREME
COURT’S GRANT OF DISCRETIONARY
REVIEW AND SUBSEQUENT REVER-
SAL OF THE DECISION OF THE APPEL-
LATE COURT WAS PROPER AND DID
NOT OFFEND THE PROSCRIPTIONS
AGAINST DOUBLE JEOPARDY. THIS
ISSUE WAS NOT RAISED UNTIL THE
PETITION FOR REHEARING IN THE IL-
LINOIS SUPREME COURT AND IS
THEREFORE WAIVED FOR PURPOSES
OF REVIEW IN THIS COURT.......................

THE DECISION OF THE SUPREME COURT

OF ILLINOIS, AFFIRMING THE JUDG-
MENT OF THE TRIAL COURT THAT
THE PETITIONER WAS GUILTY OF AR-
SON WITH INTENT TO DEFRAUD AN
INSURER, WAS SUPPORTED BY THE
OVERWHELMING WEIGHT OF THE
EVIDENCE AND THE RECORD DOES

Page

NOT SUPPORT ANY REASONABLE
HYPOTHESIS OF PETITIONER'S _IN-
NOCENCE. PETITIONER HAS FAILED
TO SHOW ANY NEED FOR THIS COURT
TO GRANT HIS PETITION FOR A WRIT
OF CERTIORARL .......-:::scssceserseeseeesetnstesensneess 15

THE PETITIONER RECEIVED THE EFFEC-
TIVE ASSISTANCE OF COUNSEL
WHERE COUNSEL WAS PRIVATELY
RETAINED, THE PETITIONER'S DE-
FENSE AT TRIAL DID NOT CONFLICT
WITH THAT OF THE CO-DEFENDANT
AND THERE IS NO SHOWING THAT A
DIFFERENT RESULT WOULD HAVE
OBTAINED HAD THE PETITIONER AND
THE CO-DEFENDANT PROCURED SEP-
ARATE COUNSEL. PETITIONER HAS
FAILED TO SHOW ANY NEED FOR
THIS COURT TO GRANT HIS PETITION
FOR A WRIT OF CERTIORARI ...........-4-++++ 20

CONCLUSION .......cscssssesesssessnssssenenensnensncnenenenenenenenenenconsnsees 27

AUTHORITIES CITED
CITATIONS

Cases:

Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141,
SF Beef COED iiiceshsetbidtibeeteincseceh denies
Fry Roofing v. Wood, 344 U.S. 157, 73 S.Ct. 204,
FT Se RO AOSD hvesdcodieecstntasensenanantbaemnciencse’
Glasser v. United States, 315, U.S. 60, 62 S.Ct.
GST, SB ETO COD CBD ) crccccccccisccesscecicecscncsacsanecosss
Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2
Ro RMN Bb A OD iiiclesiktes necieieniacaciiae heii tenses
Holland v. United States, 348 U.S. 121, 75 S.Ct.
BEE FP Bie CO 6 PID: skssstkcccrctanessoeutioserivecetecs
Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173,
So Be SO CURT wickncecneeetnrtcrtcateialectiaiies
Lollar v. United States, 376 F.2d 243 (D.C. Cir.
BE ih nied acrecteselatenit hits tit ace ce eee

CODIFY: sarvncinnnncachisestgmnappnieiiennvitiadgalsielabitankiiaadigniaie

People v. Craig, 47 Ill. App. 3d 242, 361 N.E.2d
pe SG gt NR yg 5 Raab atte eR en
People v. Mallett, 45 Ull.2d 388, 259 N.E.2d 241
CURR as cesriccasnbicie anata aaterendiakisins atin see
People v. Powell, 72 Ul.2d 50, 377 N.E.2d 803
(1978) cert. den. 99 S.Ct. 1214, 59 L.Ed.2d 455
G2 | MORRIE SPN Ps ete. Lee aR Beste MAE
People v. Schwartz, 58 Ill.2d 274, 319 N.E.2d 33
COPE hcisdincucsssccaenccapinsaabadieisiiicahitebadeanedataciaies

CEB vcsansctahionissepmnsnennnigsuiadbininaeteamnginctiica tani

RIE sicinoasinsaginsdesdaagtmenhedtaMe tia inte peek
Smith v. Regan, 583 F.2d 72 (2d Cir. 1978) cert.
Gh SES Ts SOO oie eaten

bd pf A POE Se MSRM AH TS RAR DW MERE DD eae
United States v. Boudreaux, 502 F.2d 557 (Sth
Gy WTR hasscciedeechtetaip eaten aashomataeisccecenetea horn ec
United States v. Cox, 580 F.2d 317 (8th Cir. 1978)
UG, GA Sr MM: SUE retthipecdscchsettieiecee cs.
United States v. Eaglin, 571 F.2d 1069 (9th Cir.
BOF FF ish csi ctneinanisicssessdipsibatbaupsiasmanibomiainbdiaie aceasta

Page

16
24, 25
26

16, 17, 21,
24

22
12

13,14

22,24

iv

United States v. Foster, 469 F.2d 1 (Ist Dist.
TA i kinkacidccnsidiepseskan dacssétucaaiiataietaaaiemia acta sink.

United States v. Johnston, 268 U.S. 220, 45 S.Ct.
QDG, GO LTB FES CATES P ctcacdenotetreasecscractissovecs vsks

United States vy. Lawriw, 568 F.2d 98 (8th Cir.
POET Vicicdsicses Mesisin\insrvscetbeinknp nstamlatale dcmcadgcansatongisuiconhios

United States v. Mandell, 525 F.2d 671 (7th Cir.
1975) cert. den. 423 U.S. 1049. oo... eceeeeee

United States v. Medel, 592 F.2d 1305 (Sth Cir.

SOD .casisscichenncestonsenciacdeinbatimmenbinnckailaapecentenliiibainns

United States vy. Steele, 576 F.2d 111 (6th Cir.
edi dk: oe ea = Bp; } Renee

United States vy. Valenzuela, 521 F.2d 414 (8th
Cir. 1975) cert. den. 424 U.S. 916 (1976) ...........

United States v. Wilson, 420 U.S. 332, 95 S.Ct.
BORD. GS LEG, BE Bae CRO SD csceretcbictcecttkeossvosvans

Statues

US. Ciel. i Wi ae ics ccictcnsiedicdeenatbavcscceidnieh
BEE, OE, ED CG pcsvicecpcesttnatabrdenatnabbctincmavicrcende
Ill. Rev. Stat. 1977, ch. LIOA, § 315, 367 oo.
Ill. Rev. Stat. 1969, ch. 38, § 5-2, 20-1(a)(b) .........

25
25
16
26
23, 25, 26
23
25

22, 23

No. 78-1744

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

ALBERT BERLAND,

Petitioner,
vs.

THE PEOPLE OF THE STATE
OF ILLINOIS,

Respondent.

ON PETITION FOR A
WRIT OF CERTIORARI TO THE
SUPREME COURT OF ILLINOIS

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the I'linois Appellate Court, First District,
is reported as People v. Albert Berland et al., 52 Ill. App.3d 96,
376 N.E.2d 181 (1st Dist. 1977). The opinion of the Illinois
Supreme Court, reversing the judgment of the Illinois Appellate
Court, is reported as People v. Albert Berland, et al., 74 Ill.2d
286, 385 N.E.2d 649 (1979).

JURISDICTION

The jurisdictional requisites have been set forth in the
Petition for a Writ of Certiorari. However, as treated more
fully within the following argument, the respondent does not
believe that the petitioner has shown any good reason for this
Court to exercise its sound judicial discretion to grant his
petition.

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Illinois Supreme Court’s grant of dis-
cretionary review of the State’s Appeal of a decision of the
Illinois Appellate Court reversing without remandment the
petitioner’s conviction, inter alia, due to the sufficiency of the
evidence, comports with the Double Jeopardy Provisions of the
Illinois and United States Constitutions where the Illinois
Supreme Court reinstated the conviction and did not order a
new trial, and whether the petitioner has waived this issue for
purposes of review.

2. Whether the decision of the Illinois Supreme Court
affirming the judgment of the trial court that the petitioner was
guilty of arson with intent to defraud an insurer was proper
where the trial court’s finding was based on the overwhelming
weight of the evidence and the trial court record does not
support any reasonable hypothesis of innocence.

3. Whether the petitioner received the effective assistance
of counsel where counsel was privately retained, the petitioner’s
defense at trial did not conflict with the codefendant and there
is no showing that a different result would have obtained had
the petitioner and the codefendant procured separate counsel.

3

STATEMENT OF THE CASE

THE PROCUREMENT OF THE FIRE INSURANCE
AND THE PETITIONER’S POSSESSION OF THE PREM-
ISES AS A LOSING FINANCIAL INVESTMENT.

The subject premises in the instant case, a partially occu-
pied, multi-unit, three story, dilapidated apartment building,
located at 715 South Lawndale Street in Chicago, Illinois, was
partially consumed in an arson fire on November 19, 1969.
The building was purchased by the petitioner for $18,000 in
1966. (People’s Exhibit Number 5, at 5)! On June 30, 1969, an
application for fire insurance was received by the Illinois Fair
Plan Association. The application was submitted on behalf of
the Lawndale National Bank, Trust Number 4946, with the
petitioner, Albert Berland, listed as the owner of the subject
building. The petitioner listed the value of the property as
$125,000 and requested $100,000 worth of coverage. The
application contained the question, “give the applicant’s five-
year loss record for fire and extended coverage perils.” (R. 71)
(People’s Exhibit No. 9). The petitioner stated on the appli-
cation that he had no history of fire losses in the five years prior
to the application date of the policy. (People’s Exhibit No. 10)
Since 1967, and prior to the fire, the petitioner sustained fire
losses at eight separate locations. (People’s Exhibit Nos. 5 at
15, 17, 18, 20, 21, 24, 26, 27, 28) Albert Berland’s signature
appeared on the policy. (R. 63-65)

Prior to submitting the application, the petitioner brought
it to the office of Wolf, his codefendant below, to have it
notarized. (People’s Exhibit No. 8, p. 415) The application

1R. designates the transcript of record. R.C designates the
common law record. People’s Exhibit refers to those exhibits
introduced into evidence at evidence at trail by the People, the
respondent here. Pet. Post-Trial Exhibit refers to those exhibits
introduced into evidence during the arguments on petitioner-
defendant’s post-trial motions.

4

was purportedly notarized by Maurice Blumenthal on June 20,
1969, (People’s Exhibit No. 9) which was slightly over nine
months after Blumenthal’s death in an automobile accident.
(People’s Exhibit No. 13) The statement on the notary license
said that it would expue in November of 1970. However, if
Blumenthal had lived his license would have expired in Febru-
ary, 1971. (People’s Exhibit No. 12)

On August 13, 1969, the American Casualty Company of
Reading, Pennsylvania, a member of the Fair Plan Group, (R.
66) issued a $100,000 insurance policy on 715 South Lawndale
for the period of one year. (People’s Ex. No. 9; R. 67-69)

On August 12, 1968, over 35 building code violations were
found in, on and around the building by a city building
inspector. The City of Chicago filed a suit against the
Lawndale National Bank as trustee for the property at 715
South Lawndale and against Fred Cooper (An alias used by
petitioner Berland) for necessary repairs. (People’s Exhibit
No. 5 at 28-29; People’s Exhibit No. 14, City of Chicago v.
Lawndale National Bank, Trust No. 4846, 68 CH 54452) It was
ordered that the code violations be corrected by July 1, 1969.
(People’s Group Ex. No. 14) This order was continued. A
hearing on the order was scheduled for November 20, 1969,
but on November 19, 1969, the day before the hearing, the
building was set on fire and burned. (People’s Group Ex. No.
14)

The petitioner had attempted to sell the property at 715
South Lawndale. During the two years prior to the fire of
November 19, 1969, the petitioner sold the building on contract
three times. For one reason or another every buyer defaulted
on the purchase of the building. (People’s Exhibit No. 5 at 59-
62)

During the two years prior to the fire of November 19,
1969, the petitioner had steadily been losing money on the
property. At the beginning of that period he was receiving

about $650.00 per month. (People’s Exhibit No. 5 at 104)
Then he began having trouble collecting rent and his monthly
proceeds dropped to $300 and then $200. In the month prior to
the fire he collected about $250 in rent payments. Only two of
the four tenants were paying rent. (People’s Exhibit No. 5 at
104) The Building was two-thirds vacant. (Id. at 5)

THE PETITIONER’S RELATIONSHIP TO HIS CO-
DEFENDANT AND THEIR JOINT ACTIVITIES WITH
RESPECT TO THE SUBJECT PROPERTY.

Even prior to petitioner’s purchase of the property located
at 715 South Lawndale, Woif, his codefendant, was heavily
involved with him regarding that building. Wolr conducted the
preliminary negotiations with seller of the property on behalf of
petitioner. (R. 465) Petitioner represented himself to be a real
estate broker and represented Wolf to be the buyer. (People’s
Exhibit No. 3; R. 486-487) The original contract was signed by
Wolf in his name or the name of his nominee. (R. 477-478)
Wolf then gave the contract to petitioner who made an
agreement to have the Lawndale National Bank take title for
him. (R. 480)

At one point the beneficiary of the trust holding 715 South
Lawndale was listed as ‘‘Fred Cooper.” ( People’s Exhibit No. 5
at 68; People’s Exhibit No. 14) Fred Cooper was an alias used
by petitioner in some of his real estate transactions. (People’s
Exhibit No. 5 at 70) The addresses listed for Cooper were 1614
South Kedzie and 2840 North Broadway. (People’s Exhibit
No. 14) In fact, “Fred Cooper” did not reside at either of these
locations. Those locations were the business addresses of Louis
Wolf. (People’s Exhibit No. 4, at 56; People’s Exhibit No. 3 at
72, 75)

> Wolf loaned petitioner some money and petitioner exe-
cuted an assignment of collateral in the property at 715 South
Lawndale to William Berke until petitioner had repaid Wolf.
(R. 503) Berke was Wolfs nephew and Wolf listed William

Berke as a beneficiary for the purpose of insuring that property
would pass to Berke if Wolf died. (People’s Exhibit No. 2 at
16, 39)

Wolf performed duties concerning the upkeep at 715 South
Lawndale. He referred subcontractors to peutioner. (People’s
Exhibit No. 3 at 121) He ordered coal for the building.
(People’s Exhibit No. 5 at 127) Wolf stated that he looked
after the building because it was a problem. (R. 502) In fact,
soon after petitioner purchased the property Wolf offered his
services to petitioner to help him find good tenants to live there.
(People’s Exhibit No. 5 at 65-66) When Wolf collected the
rents it was at petitioner’s request. (R. 498-499) In approxi-
mately the four years in which petitioner owned the building,
Wolf collected rents for him on at least ten occasions. (R. 499)

Wolfs significant involvement with the building also in-
volved filing lawsuits, in his own name, on petitioner’s behalf.
Wolf filed a lawsuit against Thelma Dillon, a tenant in the
building located at 715 South Lawndale, for forcible entry and
detainer. (R. 511; People’s Exhibit No. 28, Wolf v. Dillon, 69
MI 80679, filed October 14, 1969).

THE ARSON FIRE

On November 19, 1969, the premises at 715 South Lawn-
dale, Chicago, Illinois, were set on fire and were permanently
damaged.

Evelyn Mayberry testified that, on the date of the fire, she
lived at 716 South Lawndale in an apartment across the street
from the subject premises. Two men in a dark colored station
wagon pulled up on Lawndale Street going north. They parked
on the east side of the street and sat in the car for a while
looking up and down the block. It appeared as if they were
watching to see if anyone was coming. The man on the driver's
side exited and took a gasoline can out of the back of the station

wagon. He went into the building at 715 South Lawndale.
Then the other individual took a ladder out of the station
wagon and also entered the building at 715 South Lawndale.
Mrs. Mayberry identified Louis Wolf as the man who carried
the gasoline can into the building. (R. 134-139)

Mrs. Mayberry recognized the first individual, the one who
took the gas can out of the automobile, because she had seen
him the previous Sunday, November 16, 1969. That day Wolf
and another man were parked in the alley just east of her
apartment building. She watched him for about five minutes
that day. On the Monday pnior to the fire she saw Wolf taking
the locks off 715 South Lawndale. Again, he was accompanied
by another individual. On Tuesday, Wolf and another man
drove by the building two or three times in a dark colored
station wagon. (R. 140-141)

Albert Kyles testified that on the morning of November 19,
1969, he was sitting on the front steps of the apartment
building, directly across from 715 South Lawndale. He saw
two men in a station wagon pull up in front of the building and
park across the street from where he was sitting. Both men
exited from the car. The driver carried a gas can and the other
man went around to the back of the station wagon and took out
a ladder. Mr. Kyles saw both men enter the building. In court,
Mr. Kyles identified Wolf as the man who was the driver of the
car. (R. 105-107) Albert Kyles had seen Wolf collect the rent
from his aunt who had previously lived in the building at 715
South Lawndale. (R. 111, 128) Kyles had even once paid the
rent to Wolf himself. (R. 130) Wolf stated that he had
possibly collected the rent at 715 South Lawndale as many as
ten times. (R. 499)

Wolf was carrying the gasoline can and was leaning to one
side, as if there was something in the can. The men went into
the building and exited a few minutes later. When Wolf came

out of the building Mr. Kyles noticed that he was swinging the
gas can as if it were empty. The two men got into the car and
drove off. (R. 108-109)

After several minutes elapsed Mr. Kyles noticed that there
was smoke coming from the building at 715 South Lawndale.
The fire department arrived and Mr. Kyles remained at the
scene.

At trial Wolf presented an alibi defense which the Illinois
Supreme Court later characterized as a “recent concoction,”
and being of “recent origin.” The Court held that “The
identification was strong and the alibi was impeached.” People
v. Berland, supra, 74 Ill. 2d at 307.

After the blaze at 715 South Lawndale was extinguished,
Lieutenant Francis Raymond Burns, a fire investigator, em-
ployed by the Chicago Fire Department, entered the premises
at 715 South Lawndale. He determined that the fire began in a
vacant bathroom of an apartment located on the third floor.
The bathroom contained no materials that would sustain
combustion. Lieutenant Burns testified that the fire burned
downward and said that “heat or fire never burns downward
unless there is an outside force of some sort, and in this
particular instance it would be an accelerant.” (R. 168-169)
His conclusion was that the fire was not of natural origin.

THE TRIAL AND THE APPEAL

The petitioner and Wolf were charged with the crime of
arson, committed with intent to defraud an insurer, in violation
of Illinois Revised Statutes (1969), ch. 38, sec. 20-1(b) of the
Criminal Code. They were also charged with conspiracy to
commit arson in violation of Illinois Revised Statutes (1969),
ch. 38, sec. 8-2. Wolf, alone, was charged with arson ( burning
a building without the owner’s consent) in violation of Illinois
Revised Statutes (1969), ch. 38 sec. 20-1(a). On May II,

9

1973, the grand jury returned the instant indictment (No. 73-
1441). (R. C4-7) The petitioner and Wolf hired one private
counsel to conduct their defense. During the presentation of the
State’s case in chief, Wolf procured additional counsel to
represent him during the trial. (R. 202) Count one of the
indictment charging Wolf with arson, in that he burned a
building without the owner’s consent, was nolle prossed at the
close of the State’s case in chief.

Both petitioner and Wolf pleaded not guilty. Petitioner
did not testify and Wolf denied his presence at the scene of the
fire. Neither petitioner, nor his codefendant Wolf, tried to
establish his defense by implicating the other.

After a bench trial, both the petitioner and Wolf were
found guilty of arson, with intent to defraud an insurer, and
conspiracy to commit arson. A motion in arrest of judgment on
the conspiracy count was granted on the basis that the appli-
cable statute of limitations had expired. The petitioner was
sentenced to serve a term of 14 to 4% years in the Illinois State
Penitentiary and was ordered to pay a fine of $10,000.

Following the petitioner’s conviction he filed a timely
appeal to the Illinois Appellate Court, First District. That court
reversed the petitioner’s conviction for arson with the intent to
defraud an insurer on the basis that petitioner had been denied
the effective assistance of counsel due to counsel’s alleged
conflict of interest and on the basis that the State failed to prove
petitioner guilty beyond a reasonable doubt. People v. Berland,
52 Ill. App. 3d 96, 376 N.E. 2d 181 (Ist Dist. 1977).

Pursuant to the provisions of Illinois Revised Statutes
(1977) ch. LIOA, sec. 615, the People of the State of Illinois
petitioned the Illinois Supreme Court for leave to appeal the
judgment of the Illinois Appellate Court, First District. The
Illinois Supreme Court granted leave to appeal and reversed
the judgment of the Illinois Appellate Court, First District,
People v. Berland, 74 Ill. 2d 286, 385 N.E. 2d 649 (1979). in

10

its opinion the Illinois Supreme Court held inter alia, that there
was no actual conflict of interest in privately retained defense
counsel’s joint representation of Petitioner and his codefendant,
that counsel’s representation was competent and that the
petitioner was proved guilty of arson with intent to defraud an
insurer beyond a reasonable doubt on the theory of account-
ability.

The petitioner filed a petition for rehearing in the Illinois
Supreme Court in which he challenged, for the first time, the
State’s right to petition the Illinois Supreme Court for leave to
appeal a judgment of the Appellate Court wherein the Appel-
late Court reverses a defendant’s conviction for, among other
things, the sufficiency of the evidence. The petitioner’s petition
for rehearing was summarily denied, without comment. It is
from the decision of the Illinois Supreme Court that the
petitioner brings the petition for certiorari.

11

REASONS FOR DENYING THE PETITION FOR
A WRIT OF CERTIORARI

THE DECISION OF THE ILLINOIS APPELLATE
COURT REVERSING THE CONVICTION OF PETITION-
ER FOR ARSON WITH INTENT TO DEFRAUD AN IN-
SURER DID NOT OPERATE AS AN ACQUITTAL OF THE
PETITIONER; THEREFORE, THE ILLINOIS SUPREME
COURT’S GRANT OF DISCRETIONARY REVIEW AND
SUBSEQUENT REVERSAL OF THE DECISION OF THE
APPELLATE COURT WAS PROPER AND DID NOT OF-
FEND THE PROSCRIPTIONS AGAINST DOUBLE JEOP-
ARDY. THIS ISSUE WAS NOT RAISED UNTIL THE
PETITION FOR REHEARING IN THE ILLINOIS SU-
PREME COURT AND IS THEREFORE WAIVED FOR
PURPOSES OF REVIEW IN THIS COURT.

The petitioner first requests that a Writ of Certiorari be
granted by this Court on the basis that the Illinois Supreme
Court’s grant of discretionary review pursuant to the petition
for leave to appeal filed by the People of the State of Illinois
from the decision of the Illinois Appellate Court, First District,
offends the proscriptions against double jeopardy contained in
Article VI, Section 6, of the Illinois Constitution and the Fifth
A.mendment of the United States Constitution. The respondent
maintains that the petition for certiorari is improperly brought
upon this basis, for the petitioner waived the issue by raising it
for the first time in a petition for rehearing in the Illinois
Supreme Court, has failed to show that the Illinois Supreme
Court has decided a federal question not theretofore deter-
mined by this Court, or that the Illinois Supreme Court has
resolved this question in a way probably not in accord with the
applicable decisions of this Court. See Rule 19(1)(a) of the
Supreme Court of the United States. The respondent maintains

12

that the judgment of the Illinois Appellate Court which re-
versed the petitioner’s conviction for arson with intent to
defraud an insurer did not operate as an acquittal of the
petitioner. The respondent further maintains that the Illinois
Supreme Court’s grant of discretionary review of the decision of
the Illinois Appellate Court, First District, and the Illinois
Supreme Court’s subsequent reversal of the Appellate Court’s
decision without remandment was completely in accord with
Illinois Supreme Court rules and did not violate the double
jeopardy proscriptions of the Illinois and United States Con-
stitutions.

The respondent observes, at the outset that this particular
issue was not raised in the Illinois Supreme Court at the time
petitioner filed his brief in the Illinois Supreme Court. In fact,
the first time this issue was raised by the petitioner was in a
petition for rehearing in the Illinois Supreme Court following
that Court’s reversal of the decision of the Illinois Appellate
Court, First District, and the reinstating of the trial court’s
judgment of conviction. The respondent notes that in Illinois a
response to a petition for rehearing is not permitted unless
ordered by the court.. Ill. Rev. Stat. 1977, ch. 110A, sec. 367.
The People of the State of Illinois were not requested to file a
response to the petitioner’s petition for rehearing, so none was
filed. Moreover, the law in Illinois is clear that a new
contention “cannot, for the first time be urged in a petition for
rehearing.” People v. Mallett, 45 Ill. 2d 388, 259 N.E. 2d 241
(1970).

On February 20, 1979, the Illinois Supreme Court sum-
marily denied the petitioner’s petition for rehearing without
addressing the issue. The respondent therefore maintains that
the petitioner has waived this contention for purposes of review
by this Court. The respondent submits that the judgment of the
Illinois Supreme Court is not reviewable by this Court where it
is raised for the first time in a petition for rehearing in the

13
Illinois Supreme Court, especially where the higher State court’s
denial, as in the instant case, was summary in nature. Hanson
v. Denckla, 357 U.S. 235, 243, 244, 78 S. Ct. 1228, 2 L. Ed. 2d
1283 (1958).

Although the petitioner has failed to show the need for this
Court, in its sound discretion, to grant his petition, the respond-
ent, confident that the Illinois Supreme Court has properly
disposed of this issue in its summary denial of petitioner’s
petition for rehearing, will briefly address the merits. The
respondents maintain that the Illinois Supreme Court has on
several previous occasions reviewed the exact issue raised by
the petitioner in his petition for a writ of certiorari, and has
resolved the issue in favor of the respondent. People v.
Schwartz, 58 Ill. 2d 274, 319 N.E. 2d 33 (1974); People v.
Powell, 72 Ill. 2d 50, 377 N.E. 2d 803 (1978) cert. den. ____
US. . 59 L. Ed. 2d 455, 99 S. Ct. 1214 (1979). In both
Schwartz and Powell, the defendants attacked the jurisdiction
of the Illinois Supreme Court to review decisions of the Illinois
Appellate Court which reversed defendant’s convictions due to
an alleged evidentiary insufficiency. The Illinois Supreme
Court in both Schwartz and Powell, held that the proscriptions
against double jeopardy are not affected, where in a two-tier
system of Appellate Review such as exists in Illinois, the State
pursuant to Illinois Supreme Court Rule is given a right to
petition for leave to appeal to the Supreme Court from the
Appellate Court. Ill. Rev. Stat. 1977, ch. 110A, sec. 315. The
Illinois Supreme Court stated both in Schwartz and Powell, that
the defendants were convicted in the trial court, not acquitted,
and that it was the Appellate Court which found the evidence to
be insufficient. The Illinois Supreme Court held that the
question is the finality of the Appellate Court’s judgment, and,
so long as discretionary review is available to the State, the
process of review has not been completed. Schwartz, supra, at
276; Powell, supra, at 60. In Schwartz, the Illinois Supreme
Court reversed the cause with remandment to the Appellate

i4

Court with directions to consider the remaining issues. In both
Poweli and the instant case the Illinois Supreme Court reversed
the judgment of the Appellate Court and affirmed the decision
of the Circuit Court of Cook County. Neither in Schwartz, nor
in Powell, nor in the instant case, did the Illinois Supreme Court
order the defendant to be tried anew. cf. Burks v. United States,
437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978).

In United States v. Wilson, 420 U.S. 332, 43 L. Ed. 2d 232,
95S. Ct. 1013 (1975), this Court held that when a trial judge,
on a post-verdict motion, rules in favor of a defendant after he
has been found guilty by the trier of fact, the government may
appeal the trial court’s ruling without contravening the Double
Jeopardy Clause of the United States Constitution. This Court
stated, “The constitutional protection against government ap-
peals attaches only where there is a danger of subjecting the
defendant to a second trial for the same offense.” Wilson, at
336. The Court went on to say that where reversal on appeal
would merely cause the jury’s verdict to be reinstated the
proscription against double jeopardy is not violated. This Court
further stated that even where an indictment is dismissed and a
defendant is discharged, “it 1s well settled that an Appellate
Court’s order reversing a conviction is subject to further re-
view.” Wilson, at 345. The respondent maintains that this
Court’s opinion in Wilson is controlling and clearly shows that
the discretionary review allowed in this case does not offend the
double jeopardy clauses of either the Illinois or United States
Constitutions.

In seeking to have certiorari granted on this issue, the
respondent relies on this Court’s opinion in Burks v. United
States, supra, 437 U.S. 1,57 L. Ed. 2d 1, 98S. Ct. 2141 (1978).
The respondent submits that Burks is totally inapplicable to the
instant case. In Burks, this Court specifically limited its holding
providing that the double jeopardy clause prohibits the retrial
of a defendant after the reviewing court has determined the
evidence to be insufficient. This Court in Burks did not hold

15

that the government was to be precluded from applying for
discretionary review following an Appellate Court’s determina-
tion that the evidence presented at trial was insufficient to
sustain a conviction. A new trial was not ordered in the instant
case and therefore the peutioner will not be placed again in
jeopardy.

For all of the reasons noted above, the respondent urges
that this issue was properly decided by the Illinois Supreme
Court, and because the petiuoner has failed to show any need
for this Court to grant his petition for certiorari, his petition
should be denied.

THE DECISION OF THE SUPREME COURT OF
ILLINOIS AFFIRMING THE JUDGMENT OF THE TRIAL
COURT THAT THE PETITIONER WAS GUILTY OF AR-
SON WITH INTENT TO DEFRAUD AN INSURER WAS
SUPPORTED BY THE OVERWHELMING WEIGHT OF
THE EVIDENCE AND THE RECORD DOES NOT SUP-
PORT ANY REASONABLE HYPOTHESIS OF PETITION-
ER’S INNOCENCE. PETITIONER HAS FAILED TO
SHOW ANY NEED FOR THIS COURT TO GRANT HIS
PETITION FOR A WRIT OF CERIORARI.

The petitioner next requests that a Writ of Certiorari be
granted by this Court on the ground that the evidence adduced
against him in the trial court is insufficient to support his
conviction for arson with intent to defraud an insurer. In
answer, the respondent maintains that a Writ of Certiorari is
improperly sought upon this basis.

In essence, the petitioner is asking this Court to review the
lengthly trial record and accompanying exhibits (over 3,000
pages) to see if this Court can find what the Illinois Supreme
Court could not find, a reasonable hypothesis of the petitioner's

16

innocence. This Court has repeatedly held, ‘We do not grant a
certiorari to review evidence and discuss specific facts.” United
States v. Johnston, 268 U.S. 220, 227, 45 S. Ct. 496, 69 L. Ed.
925 (1925). “There are no exceptional circumstances of any
kind that would justify” this Court in rejecting the findings of
the Illinois Supreme Court, for those findings are clearly
supported by the overwhelming weight of the evidence. Fry
Roofing v. Wood, 344 U.S. 157, 160, 73 S. Ct. 204, 97 L. Ed. 2d
168 (1952). Although the petitioner has failed to show the
need for this Court, in its sound discretion, to grant his petition,
the respondent, confident that the Illinois Supreme Court has
properly determined this issue, will briefly address the merits.

The petitioner's argument on this point, rather than,
reviewing the overwhelming circumstantial evidence adduced
against the petitioner, merely states that the evidence was
“woefully inadequate” and then provides the citation to two
totally inapplicable cases. Yet, Judge Aspen, the trial court
judge, who carefully weighed the evidence, found that there
was no reasonable hypothesis of innocence. Holland v. United
States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954);
People v. Taylor, 32 Ill. 2d 165, 204 N.E. 2d 734 (1965).

The Illinois Supreme Court, in reversing the decision of the
Illinois Appellate Court, noted the superior position of the tral
court to observe the witnesses and reiterated the maxim that the
reviewing court should not substitute its judgment for that of
the trier of fact. People v. Berland, 74 Ill. 2d 286, 306, 385
N.E.2d 649 (1979). The evidence clearly shows that petitioner
was “accountable for the offense even though he did not
physically set fire to the building.” Berland, supra, at 309; Ill.
Rev. Stat. 1969, ch. 38, sec. 5-2.

The evidence at trial clearly showed that petitioner’s
codefendant, Louis Wolf, set the arson fire which resulted in the
destruction of the premises located at 715 South Lawndale. He
was observed by two eyewitnesses who had seen him on

17

previous occasions, enter the premises, with a full gasoline can
and was then observed leaving, carrying an empty gasoline can.
Although Wolf provided an alibi defense the Illinois Supreme
Court termed that alibi a “recent concoction,” being of “recent
origin’, and stated that the “alibi was impeached.” Berland,
supra, 74 Ill. 2d at 307.

The evidence presented to the trial court showed tnat
petitioner and co-defendant Wolf were inextricably interwined
in the purchase and management of the subject premises. Wolf
was intimately involved in the purchase of the property and in
fact he purchased the property alternatively in his name or the
name of his nominee. (R. 477-478)

Both the petitioner and Wolf were involved in the chain of
utle to 715 South Lawndale. At one point the beneficiary of the
trust was listed as “Fred Cooper.” (People’s Ex. No. 5, at 68;
see also People’s Ex. No. 14) “Fred Cooper” was an alias used
by Albert Berland. (People’s Ex. No. 5, at 70) Significantly,
Cooper’s address was given as 1614 South Kedzie and 2840
North Boadway. (People’s Ex. No. 14) Both of these locations
were in fact business addresses of Louis Wolf. (People Ex. No.
4, at 56; People’s Ex. No. 3, at 72, 75)

Wolf loaned petitioner some money and petitioner exe-
cuted an assignment of collateral in the property at 715 South
Lawndale to William Berke until petitioner had repaid Wolf.
( People’s Ex. No. 5, at 143; People’s Ex. No. 2 at 43; R. 503-5)
Berke was Wolf's nephew and Wolf listed William Berke as a
beneficiary for the purpose of insuring that property would pass
to Berke if Wolf died. (People’s Exhibit No. 2 at 16, 39)

During the two years prior to the fire, petitioner’s proceeds
from the rental property had steadily diminished. In the month
prior to the fire, only 2 of the 4 tenants were paying rent and the
building was two-thirds vacant. (People’s Exhibit No. 5 at 5,
104)

18

The facts also show that petitioner’s application for fire
insurance on the subject property contained false information
and the notary seal on that policy application had been forged
as the notary had been dead for 9 months at the time his seal
was affixed. (People’s Pet. at 37) The application for the fire
insurance policy on the subject premises required that the
applicant list his history of fire losses in the five years prior to
the date of the application. The petitioner entered the word
“none” in response to the question. In ‘fact, the evidence
showed that since 1967 and prior to the date of the fire,
November 19, 1969, the petitioner had sustained fire losses on
eight occasions. (People’s Exhibit No. 5 at !5, 17, 18, 20, 21,
24, 26, 27, 28) The petitioner’s signature appeared on the
application.

Although, the petition for a writ of certiorari states, “We
view this fact as incidental since Berland never denied signing
the application” (Pet. for Cert. at 9, n. 7), the respondent
submits that far from being “incidental,” the false statement on
the policy application clearly evinced the petitioner’s intent to
defraud the insurance company.

The respondent would further note that in addition to the
fraudulent application it appeared that the amount of the
insurance procured, $100,000, was greatly in excess of the value
of the property and certainly far in excess of the purchase price
of $18,000. The petitioner, in the trial court attempted to show
that the building was not over insured. However, the trial court
recognized that the amount of insurance was irrelevant because,
“the gist of the fraud upon the insuror was the burning of the
building by the insured regardless of what the replacement cost
was.” (R. 897)

The petitioner had been cited by the City of Chicago for
over 35 building code violations concerning the subject prem-
ises. The City of Chicago had asked for a fine of $6,800 or the
correction of the code violations. The cause was continued unul
November 206, 1969, but on November 19, 1969, the day before
the scheduled hearing the building was set on fire and burned.

19

The cases cited by the petitioner in support of his position
are distinguishable both on their facts and on the law. In the
instant case there was a wealth of evidence tying the petitioner
to the arson fire. In the instant case not only did the evidence
show the petitioner’s motive and procurement of an excessive
amount of insurance but the evidence in the instant case
showed the fraudulent procurement of the insurance and the
eyewitnesses testimony that the codefendant, the man from
whose office the false notary seal was obtained and the man
who was intertwined with petitioner in the purchase and
management of the building, carried a full gasoline can into the
premises and left with an empty one. A short time later the
blaze erupted.

There is absolutely no reason that can be inferred from any
testimony as to why Wolf wou!? burn the building without
Berland’s consent. It is clear from the evidence that Wolf knew
of Berland’s problems with 715 South Lawndale and had tried
to help him gain some financial reward from his investment. It
is clear that Wolf burned the building at 715 South Lawndale.
It is equally clear that Wolf would not have burned the building
without Berland’s assent. For Wolf to have taken such an
action was out of the question. He testified that he had been
friends with Berland for over thirty years. There is no evidence
that they had any type of disagreement, or that Berland owed
Wolf any money. In short, everything that Wolf did regarding
the subject building was done with the advice, consent, acquies-
cence and aid of petitioner. They were in the scheme together.

There is no reasonable hypothesis consistent with the
petitioner’s innocence. The respondent maintains that because
this issue was properly decided by the Illinois Supreme Court
on the basis of the trial record, the petitioner has failed to show
any need for this Court to grant his petition for a writ of
certiorari and entertain a de novo review of the facts in this case.
Therefore, the petition for certiorari should be denied.

20

THE PETITIONER RECEIVED THE EFFECTIVE AS-
SISTANCE OF COUNSEL WHERE COUNSEL WAS
PRIVATELY RETAINED, THE PETITIONER’S DEFENSE
AT TRIAL DID NOT CONFLICT WITH THAT OF THE
CODEFENDANT AND THERE IS NO SHOWING THAT A
DIFFERENT RESULT WOULD HAVE OBTAINED HAD
THE PETITIONER AND THE CODEFENDANT PRO-
CURED SEPARATE COUNSEL. PETITIONER HAS
FAILED TO SHOW ANY NEED FOR THIS COURT TO
GRANT HIS PETITION FOR A WRIT OF CERTIORARI.

The petitioner further seeks the granting of a writ of
certiorari by this Court, and claims that the facts in the instant
case would allow resolution of the questions of how strong a
showing of conflict of interest must be and the scope of the duty
of the trial court in cases where jointly represented defendants
have allegedly conflicting interests. (Pet. for Cert. at 21) The
respondent maintains, however, that the facts in the instant case
neither permit the formulation, nor the resolution of either
question posed by the petitioner. Moreover, the respondent
notes at the outset that a petition for a writ of certiorari is
improperly brought upon this basis, for the petitioner has failed
to show that the Illinois Supreme Court has decided such a
question in a way probably not in accord with applicable
decisions of this Court. See, Rule 19(1)(a) of the Supreme
Court of the United States. Although the petitioner has
completely failed to show the need for this Court, in its sound
discretion, to grant his petition, the respondent, believing that
the Illinois Supreme Court has properly determined this issue
upon the merits will briefly address those merits.

The Illinois Supreme Court in its opinion below in the
instant case, held that “a defendant must show actual conflict of
interest manifested at trial in order to prevail in a constituuonal
claim of ineffective assistance of counsel due to joint representa-

21

tion of co-defendants by a single attorney.” People v. Berland,
74 Ill.2d 286, 300, 385 N.E.2d 649 (1978). The petitioner has
not shown, and cannot show, that an actual conflict of interest
existed under the instant facts.

The indictment returned against the petitioner and his
codefendant consisted of three counts. Only counts one and
two are relevant here. Count one charged Louis Wolf with
arson, in that he burned the apartment building located at 715
South Lawndale, Chicago, without the consent of the owner, in
violation of Illinois Revised Statutes (1969), Ch. 38, § 20-1I(a).
(R. C4) Count two charged both Louis Wolf and petitioner
Albert Berland, with the crime of arson, committed with the
intent to defraud an insurer (R. CS), in violation of Illinois
Revised Statutes, 1969, Ch. 38 § 20-1(b). Count one of the
indictment, which charged Wolf with burning a building owned
by Albert Berland, without his consent, was nolle prossed on the
People’s motion at the close of the People’s case when the court
stated that it would preclude proof on both counts one and two.
(R. 321) The petitioner and his codefendant were convicted on
count two of the indictment which charged them with arson
with intent to defraud an insurer. Petitioner and his codefen-
dant were represented at trial by one, privately retained
counsel. New privately retained counsel represented the peti-
toner during the post-trial motions and on appeal.

The Illinois Supreme Court held that the record in the
instant case was “devoid of any evidence of an actual conflict of
interest.” Berland, supra, 74 Ill. 2d at 300. The respondent
submits that the Illinois Supreme Court was clearly correct.

Wolf's defense was that he was not present at 715 South
Lawndale at the time the crime occurred. He stated that he did
not know about the fire until several days to a week after the
loss. (R. 489) Wolf presented an alibi defense to show that he
was at the law office of Mr. Samuel Siegel on the morning of
the fire. Petitioner did not present an alibi defense and the trial

22

court acknowledged that there was no evidence showing peti-
tioner’s presence at the scene of the fire. Petitioner’s defense
was basically one of denial and he presented testimony in an
attempt to show that the building was not over insured in an
effort to negate the prosecution’s evidence of motive. Clearly,
there was no conflict in these defenses and neither defendant
sought to implicate the other in any manner. People v.
Somerville, 42 Wl.2d 1, 9, 245 N.E.2d 461 (1969); People v.
Craig, 47 Ill. App.3d 242, 361 N.E.2d 736 (ist Dist. 1977).

The petitioner speculates that defense counsel’s representa-
tion of him was hampered because of privately retained
counsel’s representation of the codefendant.* The Illinois Su-
preme Court has specifically rejected creating a “conflict of
interest out of mere conjecture as to what might have been
shown.” People v. Somerville, 42 Ill. 2d 1, 245 N.E.2d 461
(1969).

In the instant case, neither Wolf nor petitioner was
attempting to establish his defense by implicating the other. In
fact, petitioner was benefitted by Wolfs testimony wherein he
disclaimed presence at the premises in question on the morning
of the fire, as that testimony would if anything tend to negate
petitioner’s involvement in the crime. Moreover, there was no
reason to assume that petitioner would ever try to show that
Wolf burned the building without his consent, had he been
represented by different counsel or even if he had been tried
separately.

There is absolutely no reason that can be inferred from any
testimony as to why Wolf would burn the building without
petitioner’s consent. For Wolf to have taken such an action is

2In United States v. Steele, 576 R.2d 111 (6th Cir. 1978), the
sixth circuit court of appeals declined to adopt a per se rule under the
‘xth amendment requiring jointly represented defendants to be
advised of their right to separate counsel in cases where, as here, joint
counsel was privately retained.

23

out of the question. He testified that he had been fr:ends with
petitioner for over thirty years. There is no evidence that they
had any type of disagreement, or that petitioner owed Wolf any
money. Clearly, any allegation of conflict of interest is pure
speculation. Their defenses did not conflict with one another.

The Illinois Supreme Court’s position of refusing to reverse
a conviction because of speculation as to what might have been
has been followed by a number of Federal Circuit Courts of
Appeals. United States v. Medel, 592, F.2d 1305 (Sth Cir.
1979); United States v. Steele, 576 F.2d 111 (6th Cir. 1978)
cert. den. 99. S.Ct. 313; United States v. Mandell, 525 F.2d 671
(7th Cir. 1975); Smith v. Regan, 583 F.2d 72 (2d Cir. 1978);
cert. den. 435 U.S. 406. United States v. Eaglin, 571 F.2d 1069
(9th Cir. 1977) cert. den. 435 U.S. 406. United States v..
Valenzuela, 52! F.2d 414 (8th Cir. 1975) cert. den. 424 U'S.
916 (1976).

Moreover, the petitioner’s cause was advanced by counsel
without sacrificing his interests in favor of the codefendant
before trial, during the prosecution’s case in chief, and during
the defense case in chief. Counsel conducted a pre-trial
investigation, filed and argued pre-trial motions, made objec-
tions to various exhibits, argued points of law, cross-examined
the State’s witnesses and presented a defense. Additionally,
during the presentation on the State’s case in chief defendant
Wolf was represented by a second privately retained attorney.
(R. 259) At the conclusion of those arguments the State nolle
prossed count one of the indictment. (R. 321) Therefore, at the
time the defense presented its case the only count on which the
defendant and the petitioner were being tried was count two.

The respondent submits that the instant case is precisely
the type of case where a joint representation is more effective
for the defendants. As the Court of Appeals said in United
States v. Medel, 592 F.2d 1305, 1312 (Sth Cir. 1979),” when
the parties’ interests were so closely related, if either had
suggested that the other party was guilty, then this allegation
might have worked to the detriment of the accusing party.” As

24

Mr. Justice Fragktfurter said in his dissent in Glasser v. United
States, 315 U.S) 60, 92, 62 S.Ct. 457 86 L.Ed. 680 (1942),
quoted approvingly in Holloway v. Arkansas, 435 U.S. 475, 98
S.Ct. 1173, 55 L.Ed2d 426 (1978), “Joint representation is a
means of ensuring against reciprocal recrimination. A common
defense often gives strength against a common attack.” This
Court in Holloway clearly enunicated that, “Requiring or per-
mitting a single attorney to represent co-defendants, ... 1s not
per se violative of constitutional guarantees of effective assis-
tance of counsel.”” Holloway supra, 435 U.S. at 482.

The Illinois Supreme Court extensively discussed both the
holdings in Glasser v. United States, supra, and Holloway,
supra, in their opinion in Berland, supra.

The court has refused an invitation to require tnal judges
to ascertain that co-defendants’ decisions to proceed with
one attorney are informed ( People v. Somerville (1969),
42 Ill. 2d 1, 10). The crucial determination is whether
there is a conflict, since absent such conflict there is no
threat to a defendant's right to the assistance of separate
counsel. . Neither Glasser v. United States, (1942), 315
U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457, nor Holloway v.
Arkansas, (1978), 435 U.S. 475, 55 L.Ed. 2d 426, 98 S.Ct.
1173, indicate that a pretrial inquiry and waiver of sepa-
rate counsel is mandated tn all cases of joint representa-
tion. Because joint representation is not per se uncon-
stitutional there is no need to require judicial inquiry unul
the conflict appears. The language in Glasser and Hol-
loway that it is the duty of the trial judge to see that the
trial is conducted with solicitude for the essential nghts of
the accused is directed specifically to trial court insistence
upon joint representation where counsel or the defendant
has requested separate representation. Since there was no
conflict here, judicial inquiry was not required. Berland, at
3085,

There was no objection to joint representation voiced by
privately retained counsel, nor by the petitioner or his co-
defendant in the instant case and there was no actual conflict.

25

The facts of the instant case, therefore, do not fall within the
ambit of Holloway v. Arkansas, supra, and render Holloway
inapplicable to the case at bar. See Thacker v. Bordenkircher,
590 F.2d 640 (6th Cir. 1979).

The petitioner urges that this Court set guidelines for all
Federal and State Courts to follow in situations where co-
defendants are jointly represented. He asks that an “affirma-
tive duty” be placed on the trial judge “to assure that criminal
defendants represented by single counsel are advised of the
possibility of conflicting interests.” (Pet. at 21) The petitioner
urges as a guideline to implement the standards that this Court
adopt the reasoning of the Court of Appeals in the United
States v. Gaines, 529 F.2d 1038 (7th Cir. 1976). Yet, the
Gaines Court stated that not until an “actual conflict appears”

. must “the Court ... bring the fact of its existence,” to the
attention of the parties. Gaines, supra, at 1044. There being no
actual conflict in the instant case ( People v. Berland, supra, 74
Il.2d at 300), the Gaines rationale cannot possibly apply in the
instant case. Moreover, as the Court of Appeals said in United
States v. Mandell, supra, 525 F.2d 671 (7th Cir. 1975) cert.
den. 423 U.S. 1049 (1976), “the primary responsibility for the
ascertainment and avoidance of conflict situations must lie with
the members of the bar. Accord, United States v. Paz-Sierra,
367 F.2d 930, 932-933 (2d Cir. 1966); United States v.
Boudreaux, 502 F.2d 557 (Sth Cir. 1974). This Court in
Holloway v. Arkansas, supra, held that “an attorney represent-
ing two defendants in a criminal matter is in the best position
professionally and ethically to determine when a conflict of
interest exists or will probably develop in the course of a trial.”
98 S.Ct. 1173 at 1179.

It is clear that those Courts which have placed a heavy
burden on the trial judges rather than on trial counsel to
identify conflicts and advise the parties have done so pursuant
to their “supervisory powers”, rather than on consututional
grounds. United States v. Foster, 469 F.2d 1, 4 (Ast Cir. 1972);

26

United States v. Cox, 580 F.2d 317 (8th Cir. 1978) explaining
United States v. Lawriw, 568 F.2d 98 (8th Cir. 1977); see
Lollar vy. United States, 376 F.2d 243 (D.C. Cir. 1967) A
number of the Circuit Courts of Appeal have declined to
exercise their supervisory powers and implement an affirmative
inquiry requirement on the trial court. See United States v.
Mandell, supra, 525 F.2d 671 (7th Cir. 1975) and the cases
cited therein at 676.

For all of the above stated reasons, the respondent urges
that because the Illinois Supreme Court properly decided this
issue on the merits, because the decision of the Illinois Supreme
Court is in accord with the decisions of this Court, and because
the petitioner has failed to show any need for this Court to
grant his petition for a Writ of Certiorarn, such petution should
be denied.

27

CONCLUSION

The People of the State of Illinois respectfully request that
the petition for a writ of certiorari be denied.

Respectfully submitted,

WILLIAM J. SCOTT,
Attorney General of the State of Illinois,

DONALD B. MACKAY,

MELBOURNE A. NOEL, JR.
Assistant Attorneys General,
188 West Randolph Street, Suite 2200
Chicago, Illinois 60601
(312) 793-2570,

Attorneys for Respondent.

BERNARD CAREY,
State’s Attorney of Cook County, Illinois,
500 Richard J. Daley Center,
Cc hicag, Illinois 60602
(312) 443-5496
Marcia B. Orr,

JOAN S. CHERRY,
Assistant State’s Attorneys,

Of Counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0219%3A2. Public record. Not legal advice.