In re Denzel W. ( 2010 )

Docket Nos. 107003, 107112 cons.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re DENZEL W., a Minor (The People of the State of Illinois,
Appellant, v. Denzel W., a Minor, Appellee).–THE PEOPLE OF
THE STATE OF ILLINOIS, Appellee, v. KENNETH SMITH,
Appellant.
Opinion filed March 18, 2010.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Thomas, Kilbride and
Karmeier concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justice Burke.
OPINION
This consolidated appeal raises the issue of whether a defendant’s
right to counsel is violated where defense counsel fails to comply
with Supreme Court Rule 711 (210 Ill. 2d R. 711). Specifically,
counsel in each of these cases failed to file the accused’s written
consent to participation in the defense by a nonattorney senior law
student or law graduate (a 711 law student). In Denzel W., respondent
was adjudicated delinquent following a bench trial in which a 711 law
student assisted the assistant public defender and conducted the direct
and redirect examinations of one defense witness. In Smith, a 711 law
student participated along with the assistant public defender in a
hearing on defendant’s motion to suppress evidence. In neither case
does the record indicate that defense counsel obtained the consent of
the respondent or defendant to participation by the 711 law student.
Respondent and defendant argue that the public defender’s failure to
obtain such consent denied them their right to counsel. For the
reasons that follow, we reverse the decision of the appellate court in
Denzel W. and remand that cause for further proceedings consistent
with this opinion. We affirm the decision of the appellate court in
Smith.
BACKGROUND
1. In re Denzel W.
Respondent Denzel W., a minor, was charged, in the circuit court
of Cook County, with one count of aggravated battery against Bobbi
F.1 arising from an incident that occurred at Ridgeland Commons
community park in Oak Park, Illinois. At a bench trial on April 7,
2005, respondent was represented by an assistant public defender,
who stated before trial that he would “be assisted by *** 7-11 [sic]
law clerk [J.F.]” The cover sheet of the trial transcript similarly
identifies J.F. as “7-11,” but no written consent to her participation
was filed.
At trial, Bobbi F. testified that she and several friends had gone
to Ridgeland Commons to sled, and Bobbi was approached by
respondent and his friends. Bobbi stated that although she tried to
walk away, respondent followed her and began making lewd
comments. Bobbi then ran away from respondent into a park building,
but respondent followed her and dragged her out of the building by
her ponytail. According to Bobbi, respondent then pulled her to the
front of the building where he repeatedly slammed her head into a
patch of ice. A few moments later, respondent picked Bobbi up and
threw her into a garbage can before walking away. On cross-
examination, conducted by the assistant public defender, Bobbi
1
Although the transcript spells the victim’s name phonetically as
“Bobby,” the parties’ briefs to this court indicate that her name is spelled
“Bobbi.”
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admitted that she and respondent had quarreled in the past. The State
also called Grant M., one of the boys who had been sledding with
Bobbi F., and Bobbi’s mother. Both witnesses were cross-examined
by the assistant public defender.
Respondent’s first witness was Tequila T., and the direct
examination of Tequila was performed by the 711 law student, J.F.
Tequila testified that she had been sledding at Ridgeland Common
that day along with Bobbi F., Grant M., and others. She stated that
she had not seen anything out of the ordinary that day, and she had
not seen Bobbi with respondent, although she had seen respondent
and his friends at the park. When J.F. began to ask Tequila a leading
question about what she had seen respondent and his friends doing,
the court interjected an admonition:
“Q. [by J.F.] Did you see him doing anything with his
friends?
A. They was just talking.
Q. They were just socializing at the Ridgeland Commons?
THE COURT: No. No. It’s not what she said. Don’t you
summarize and put words in her mouth. You ask questions.
That’s all. You do not ask leading questions.”
J.F. also attempted to elicit testimony about Bobbi’s reputation
around school:
“Q. Did you go to school with [Bobbi]?
A. Yes.
Q. What type of reputation did [Bobbi] have at school?
[State’s Attorney]: Objection.
THE COURT: Her reputation–Sustained.
[Assistant public defender]: Judge.
THE COURT: If it goes to peacefulness, that’s fine. If it
goes to anything else, no. It has nothing to do with this case.
You have to lay a proper foundation for reputation. If you’re
going to go to peacefulness.
[J.F.]: Nothing further with this witness, your Honor.”
On cross-examination, Tequila claimed that she and others had
warned Bobbi not to go down the sledding hill when respondent and
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his friends were there. The assistant public defender then attempted
to begin a redirect examination, but he was stopped by the court, who
said, “You didn’t start this examination. You don’t get to finish it.
Your co-counsel did the examination. *** We don’t play tag team
here.” The attorney replied, “That’s fine,” and the court added, “If she
[J.F.] has other questions to ask on redirect, fine.” J.F. then conducted
a brief redirect.
J.F. also conducted a direct examination of Travis P., a friend of
respondent. Travis testified that he had been with respondent at the
park, and that he had been apart from respondent for only about two
minutes during the afternoon. He also said that he did not see
respondent grab Bobbi, nor did he see any injuries on Bobbi that day.
Respondent then called Bobbi F. to testify again, and she was
examined by the assistant public defender.
Finally, respondent testified on his own behalf, also examined by
the assistant public defender. Respondent claimed that he and his
friends were having a snowball fight when one of his friends
accidentally hit Bobbi with a snowball. According to respondent,
Bobbi mistakenly believed he had thrown the errant snowball, and the
two had argued, but that no physical altercation had taken place. He
specifically denied chasing Bobbi, hitting her, or slamming her head
into the ground.
The assistant public defender also gave respondent’s closing
argument, arguing that Bobbi had fabricated the entire story because
she “never liked” respondent. The court found that the State had met
its burden, and adjudicated respondent delinquent. Respondent
appealed, and the appellate court reversed the circuit court’s decision
and ordered a new trial. In re Denzel W., No. 1–05–3374
(unpublished order under Supreme Court Rule 23). The court found
that the failure to obtain consent to representation by a 711 law
student was a violation of respondent’s right to counsel, relying on
People v. Schlaiss, 174 Ill. App. 3d 78 (1988) (finding defendant was
denied counsel where he did not consent to participation of 711 law
student in his representation). It rejected the State’s argument that the
failure should be subject to a harmless-error analysis, holding that the
lack of consent amounted to a complete denial of counsel. We granted
the State’s petition for leave to appeal pursuant to Supreme Court
Rule 315 (210 Ill. 2d R. 315).
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2. People v. Smith
Defendant Kenneth Smith was charged, in the circuit court of
Cook County, with possession of a controlled substance with intent
to deliver, delivery of a controlled substance, possession of a
controlled substance with intent to deliver within 1,000 feet of a
school, and delivery of a controlled substance within 1,000 feet of a
school. Before trial, defendant moved to quash his arrest and suppress
all evidence gathered therefrom, arguing that the police had not had
probable cause.
The circuit court held a hearing on the motion, and defendant was
represented by an assistant public defender and J.B., an intern
practicing pursuant to Rule 711. The cover sheet for the transcript of
the hearing indicates that J.B. appeared “[p]ursuant to Supreme Court
Rule 7-11 [sic].” Nothing else in the record references J.B.’s status;
neither J.B. nor the assistant public defender stated on the record that
J.B. was not a licensed attorney, and no written consent from
defendant was filed.
During the hearing, J.B. conducted the examination of defendant,
who testified that he had been walking on a sidewalk when a police
car pulled up on the street behind him. According to defendant, the
officers got out of the car and asked defendant if he knew “anything
about a gun.” Defendant testified that the officers then searched him
and, finding the packets of heroin, arrested him.
The State’s sole witness, Officer Griggs, testified that he had
observed defendant and codefendant Antonio Rollins standing on a
corner for 20 to 30 minutes. During that time, whenever a car pulled
up one of the defendants would approach the car and take something
from the driver. He would then walk back to the corner and then
return to the car, handing something off to the driver. Griggs testified
that he could not observe what exactly had changed hands. However,
after the third car had pulled away, Griggs radioed to nearby officers
to stop the car and search the occupant. When he received
confirmation that the driver of that car had small packets of heroin
wrapped in tinfoil, Griggs approached defendant and Rollins and
arrested them. Griggs did not personally search defendant, but he
testified that the officers who performed the search found three tinfoil
packets containing heroin. On cross-examination, conducted by the
assistant public defender, Griggs agreed that it was dark at the time
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of the arrest and he could only see using artificial light. He also
agreed that he did not know what had changed hands between the
men on the street and the drivers, but he suspected it was drugs.
After defendant and Griggs had testified, J.B. gave the
defendant’s argument on the motion. He conceded that the police had
reasonable suspicion enough to stop defendant, but argued that Griggs
did not have probable cause to arrest defendant. At the close of the
hearing, the trial court denied defendant’s motion, finding that
Griggs’ testimony had established the existence of probable cause to
arrest defendant.
At trial, defendant was represented by two assistant public
defenders; J.B. did not participate in the defense. A jury found
defendant not guilty of delivery of a controlled substance but guilty
of possession of a controlled substance within 1,000 yards of a
school. Defendant appealed, and the appellate court affirmed
defendant’s conviction. Smith, 384 Ill. App. 3d 489. The court
analyzed defendant’s claims in the context of an ineffective assistance
of counsel claim, noting that defendant was represented at trial only
by licensed attorneys. The court also opined that J.B.’s participation
in the motion to quash hearing was minimal, and he primarily did
nothing more than reassert the written motion prepared by a licensed
public defender. We granted defendant’s petition for leave to appeal
pursuant to Supreme Court Rule 315, and we consolidated his appeal
with the State’s appeal in Denzel W.
ANALYSIS
Under Supreme Court Rule 711, a recent law graduate or senior
law student who has completed three-fifths of his or her course work
and who is in good academic standing may perform legal services
“[u]nder the supervision of a member of the bar of this State, and
with the written consent of the person on whose behalf he/she is
acting, which shall be filed in the case and brought to the attention of
the judge.” 210 Ill. 2d R. 711(c). In criminal cases “in which the
penalty may be imprisonment,” Rule 711(c)(2)(ii) provides that the
711 law student may “participate in pretrial, trial, and posttrial
proceedings as an assistant of the supervising member of the bar, who
shall be present and responsible for the conduct of the proceedings.”
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210 Ill. 2d R. 711(c)(2)(ii). In “all other civil and criminal cases,”
Rule 711 permits the student to conduct “all pretrial, trial, and
posttrial proceedings” under the supervision of a licensed attorney
who need not be present. 210 Ill. 2d R. 711(c)(2)(iii).
Rule 711 provides a valuable mechanism by which law students
can gain practical experience in the courtroom under the close
supervision of an experienced attorney. We join the numerous courts
that have lauded the invaluable experience provided to law students
through student licensing programs similar to that provided in Rule
711. See, e.g., Duval v. State, 744 So. 2d 523, 525 (Fla. App. 1999);
City of Seattle v. Ratliff, 100 Wash. 2d 212, 217-18, 667 P.2d 630,
633 (1983); People v. Perez, 24 Cal. 3d 133, 140-42, 594 P.2d 1, 5-6,
155 Cal. Rptr. 176, 180-81 (1979). However, students who are
granted permission to perform legal services under Rule 711 must
adhere to the same rules of legal procedure, ethics, and practice that
bind fully licensed attorneys. Along with the privilege of their closely
supervised practice comes the responsibility of ensuring that they are
at all times in compliance with the law and the rules of this court.
This responsibility applies with special force to the requirements
enumerated in Rule 711, the fulfillment of which are conditions
precedent to the practice of law under that rule. Similarly, it is
incumbent upon all members of the bar who allow 711 law students
to assist in their practice, who remain “responsible for the conduct of
the proceedings” under the rule (210 Ill. 2d R. 711(c)(2)(ii)), to
ensure that our rules are followed.
As we have often noted, “our rules are not mere suggestions.”
People v. Houston, 226 Ill. 2d 135, 152 (2007); see also People v.
Wilk, 124 Ill. 2d 93, 103 (1988) (“At the risk of stating the obvious,
it should be pointed out that the rules adopted by this court
concerning criminal defendants *** are in fact rules of procedure and
not suggestions”). Indeed, they have the force of law and are to be
construed in the same manner as statutes. Houston, 226 Ill. 2d at 152;
People v. Norris, 214 Ill. 2d 92, 97 (2005). Here, the plain meaning
of Rule 711 is clear: written consent must be obtained from the client
sought to be represented before legal serviced may be performed by
the 711 law student. Accordingly, until consent is obtained and filed
pursuant to Rule 711, the student may not perform legal services.
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In the cases before us, we first acknowledge that, although all
parties assume that neither respondent nor defendant in fact consented
to the participation of the 711 law student, neither has specifically
alleged an actual lack of consent. However, Rule 711 requires not
only that consent be obtained, but that written consent “be filed in the
case and brought to the attention of the judge or presiding officer.”
210 Ill. 2d R. 711(c). Neither record before us contains the requisite
written consent, and the State has not argued that written consent was
actually filed in either case. Therefore, we find that Rule 711 was
violated in both cases.
Respondent and defendant urge us to end our inquiry here. They
argue that they have been denied counsel simply because their
assistant public defenders were assisted by 711 law students who
failed to comply with all of Rule 711. They rely on the decision by the
Supreme Court of Washington in City of Seattle v. Ratliff, which held
that “representation by a law student intern who fails to comply with
the conditions placed upon his or her practice does constitute an
absolute denial of the right to counsel which requires reversal.”
Ratliff, 100 Wash. 2d at 219, 667 P.2d at 634. Our appellate court
adopted the Ratliff approach in People v. Schlaiss, 174 Ill. App. 3d 78
(1988), and in Denzel W. below.
Initially, we note that the facts in Ratliff are distinguishable from
the present cases. In Ratliff, the defendant appeared for trial on three
consolidated charges, but no counsel appeared to represent him. The
defendant told the court that an intern with the county public defender
association was representing him in another case, and the court
summoned the intern. When the intern arrived, the court expressed an
intent to go forward with the trial with the intern as counsel. The
intern explained that he was a legal intern, that he was not
representing the defendant in the cases scheduled for trial, and that he
was not prepared to go forward with a trial. At the prosecution’s
urging, however, the court required the intern, over objection, to
proceed with the trial. Ratliff, 100 Wash. 2d at 213-15, 667 P.2d at
630-31.
The Ratliff court acknowledged that “one who is authorized to
practice only under certain conditions, such as a legal intern, may be
considered ‘counsel’ for constitutional purposes,” but it emphasized
that “this is so only when he or she complies with those conditions”
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(emphasis in original). Ratliff, 100 Wash. 2d at 218, 667 P.2d at 633.
It therefore concluded that, because the intern was not “counsel” for
constitutional purposes, the defendant had been denied counsel.
Ratliff, 100 Wash. 2d at 219, 667 P.2d at 634.
Schlaiss, on the other hand, applied Ratliff to very different
factual circumstances. There, the defendant was represented at trial
and sentencing by an assistant public defender and a 711 law student.
As in the present cases, the 711 law student failed to record the
written consent of the defendant. Citing the broad language of Ratliff
for support, the appellate court held that “[b]ecause the conditions
necessary for [the student’s] representation of [the defendant] were
not met, he cannot be considered ‘counsel’ for constitutional
purposes. Therefore, under these facts, we conclude that the
defendant was denied counsel in violation of the sixth amendment.”
Schlaiss, 174 Ill. App. 3d at 81.
This court has held that, for constitutional purposes, the term
“counsel” means “a duly licensed and qualified lawyer, and not an
attorney in fact or a layman.” People v. Cox, 12 Ill. 2d 265, 269
(1957). Our rules establish the requirements that attorneys must meet
to be considered “duly licensed and qualified.” See, e.g., 210 Ill. 2d
Rs. 704 (“Qualification on Examination”), 705 (“Admission on
Motion”). Attorneys who do not comply with the rules of licensure
we have established are not “duly licensed” to practice in this state.
However, a 711 law student is allowed to practice notwithstanding
the fact that he or she has not completed the ordinary requirements of
licensure; the student has not necessarily had his or her education
certified by an accredited law school, proven his or her competence
by passing a bar examination, and established his or her fitness to
practice law by passing a character and fitness evaluation. To ensure
that the client will receive adequate representation, Rule 711 therefore
imposes specific procedures that must be followed, and a student who
fails to comply with Rule 711 has not satisfied the requirements we
have established to protect the rights of his or her client. Thus, we
hold that a student who has not complied with the requirements of
Rule 711 is not counsel for constitutional purposes.
This determination does not end our inquiry, however. In these
cases, respondent and defendant were not represented by law students
alone. Both were also represented by fully licensed assistant public
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defenders who were present and actively involved in the
representation. As the California Supreme Court said of California’s
analogous student practice rule in People v. Perez,
“[t]he defendant *** is not merely represented by a student
who has not been admitted to the bar; he is represented by an
experienced member of the bar who serves as counsel of
record, undertakes personal and immediate supervision of the
student’s performance, and assumes responsibility for the
conduct of the defense.” People v. Perez, 24 Cal. 3d at 138,
594 P.2d at 4, 155 Cal. Rptr. at 179.
Rule 711 specifically provides that, in criminal cases in which the
penalty may be imprisonment, the student-practitioner may participate
only “as an assistant of the supervising member of the bar who shall
be present and responsible for the conduct of the proceedings.”
(Emphases added.) 210 Ill. 2d R. 711(e). Thus, the rule is very clear
that the responsibility for the representation falls not on the student
but on the supervising attorney. We acknowledge that the supervising
attorney need only be actually present when the defendant may face
imprisonment; in other criminal cases, a 711 law student may appear
alone. 210 Ill. 2d R. 711. However, the United States Supreme Court
has recognized a constitutional right to counsel only where the
defendant may face imprisonment. See Scott v. Illinois, 440 U.S. 367,
373, 59 L. Ed. 2d 383, 389, 99 S. Ct. 1158, 1162 (1979); Argersinger
v. Hamlin, 407 U.S. 25, 37, 32 L. Ed. 2d 530, 538, 92 S. Ct. 2006,
2012 (1972), Therefore, Rule 711 specifically requires that, in cases
in which the defendant is entitled to counsel, a fully licensed attorney
must be present and supervising the representation.
The presence of the licensed attorney, who certainly is counsel for
constitutional purposes, is not somehow “cancelled out” by the law
student’s participation, even if the law student has not complied with
Rule 711. Where the supervising attorney properly supervises the 711
law student and remains responsible for the representation, as Rule
711 requires, we hold that the defendant has not been denied counsel.
To the extent that People v. Schlaiss is inconsistent with this holding,
it is overruled.
Conversely, where the defendant is entitled to counsel but the 711
law student appears alone in violation of the rule, the defendant
clearly has been denied counsel. In re Moore, cited by respondent and
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defendant, is an example. There, the trial court appointed a law
student, believing him to be an assistant public defender, to assist a
pro se respondent in an involuntary commitment proceeding at which
the respondent had a statutory right to counsel. In re Moore, 63 Ill.
App. 3d 899, 900 (1978). The law student was not supervised at any
point by a licensed attorney, and therefore respondent did not receive
the assistance of counsel to which he was entitled.
However, a supervising attorney does not satisfy his or her
obligation under Rule 711 merely by being physically present. Under
the standard set forth in Strickland v. Washington, 466 U.S. 668, 80
L. Ed. 2d 674, 104 S. Ct. 2052 (1984), a defendant can demonstrate
that he received ineffective assistance of counsel by showing both
that counsel’s performance “fell below an objective standard of
reasonableness” and that the deficient performance prejudiced the
defense. Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S.
Ct. at 2064. Although respondent and defendant urge us to adopt a
new framework in which to evaluate failures to comply with Rule
711, we find that the Strickland analysis provides a more appropriate
avenue for resolving such errors. Thus, where the attorney’s
supervision of a 711 law student is insufficient in quality, nature, or
duration, such that his or her performance amounts to ineffective
assistance of counsel under Strickland, the defendant is entitled to a
new trial.
Finally, respondent and defendant argue that consent to
participation by a 711 law student is equivalent to a partial waiver of
counsel, and thus any failure to obtain that consent must be treated as
an independent error of constitutional magnitude. Because we find
that a defendant who is represented with the aid of a 711 law student
receives his “counsel” for constitutional purposes from the licensed
supervising attorney, we necessarily reject this argument. Where the
supervising attorney fulfills his or her responsibility under Rule 711,
the defendant does not give up his right to counsel by consenting to
the student’s participation, nor does the failure to obtain that consent
itself amount to a denial of counsel.
We now turn to the cases at bar. In Denzel W., the appellate court
reversed the trial court’s ruling adjudicating respondent delinquent
and ordered a new trial, finding that the violation of Rule 711 resulted
in a complete denial of counsel. In re Denzel W., No. 1–05–3374
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(unpublished order under Supreme Court Rule 23). We disagree. As
we have explained, a violation of Rule 711 does not amount to a per
se denial of counsel. Instead, the supervising attorney’s performance
must be evaluated as a whole under Strickland. The failure to file
written consent under Rule 711 is one factor to consider when
evaluating whether counsel was ineffective, but a reviewing court
must assess that failure in light of counsel’s overall performance, and
it must determine whether counsel’s performance prejudiced the
accused. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct.
at 2064.
Respondent also argues that he was denied counsel when the trial
court prevented the supervising assistant public defender from
conducting the redirect examination of Tequila T., and in the
alternative, he argues that his counsel was ineffective, citing several
alleged errors made at trial. With respect to the redirect of Tequila T.,
the appellate court noted that the trial court’s actions were “error,” but
because the appellate court resolved respondent’s claims on the issue
of consent alone, it performed no analysis of the import of the alleged
error. Similarly, the court did not address respondent’s claims that he
received ineffective assistance of counsel.
We agree with the appellate court that the trial court’s actions in
Denzel W. are troubling. Although we appreciate the court’s desire to
teach the 711 law student through experience, it is important that
courts before whom 711 law students appear be particularly mindful
of the supervising attorney’s obligation to ensure that counsel is
effective. As the appellate court stated, “[a]dherence to preferred
courtroom procedures should not trump the accused’s right to
effective assistance of counsel in a ‘teaching exercise’ involving a
711 student.” In re Denzel W., No. 1–05–3374 (unpublished order
under Supreme Court Rule 23). Therefore, although we disagree with
the appellate court’s determination that respondent is entitled to a
new trial based on a Rule 711 violation alone, we remand Denzel W.
to the appellate court for a determination of whether the trial court’s
actions, along with respondent’s other claimed errors, resulted in
respondent’s receiving ineffective assistance of counsel.
Unlike the appellate court in Denzel W., the appellate court in
Smith did consider defendant’s claims as part of an ineffective
assistance of counsel analysis, finding that counsel was not
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ineffective. People v. Smith, 384 Ill. App. 3d 489 (2008). Defendant
argues only that the court should have instead employed a per se rule;
he does not argue that the court’s Strickland analysis was flawed, and
he has not raised any other claims of error. Because we reject
defendant’s sole argument that the failure to comply with Rule 711
amounts to a per se denial of counsel, we affirm the decision of the
appellate court in Smith.
CONCLUSION
We reject respondent and defendant’s claim that they were denied
counsel because they did not consent to a 711 law student’s
participation in their defense. Accordingly, we reverse the decision of
the appellate court in Denzel W. and remand the cause to the appellate
court with directions to consider respondent’s additional arguments.
We affirm the decision of the appellate court in Smith.
No. 107003–Reversed and remanded.
No. 107112–Affirmed.
JUSTICE FREEMAN, dissenting:
This case presents the simple issue of what happens when Rule
711 is violated due to the failure to obtain the required written
consent of the person on whose behalf the law student was acting.
Resolving this issue requires that we interpret our own rules. In so
doing, the court once again harrumphs the familiar edict that its rules
“are not mere suggestions” and that “[i]ndeed, they have the force of
law.” Slip op. at 7; see also People v. Glasper, 234 Ill. 2d 173, 189
(2009) (addressing what happens when a trial judge does not permit
voir dire questioning as required under Rule 431). Those familiar
with this court’s other, recent interpretations of its own rules will
recognize what comes next: an analysis that will actually strip Rule
711 of this “force of law,” rendering it nothing more then the “mere
suggestion” that it is not supposed to be. The last most recent
example of this edict-invalidating analysis came in People v. Glasper.
There, the court’s answer to what happens when Rule 431 is violated
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was the same as here: nothing. These kinds of decisions not only
undermine the force of our rules, they erode respect for judicial
decisions. After all, how many times can this court continue to say
“Do as I say, not as I do” before no respect remains? The analysis
offered by the court in these consolidated appeals is problematic for
a number of reasons. In the Smith appeal, which is the easier case of
the two, the court fails to give effect to the consent requirement of
Rule 711, thereby rendering that portion of the rule mere surplusage.
In the juvenile case, the court fails to even consider whether the rule
has any application in juvenile proceedings. I therefore respectfully
dissent. This court promulgated Rule 711 in May 1969, “in
response to the increased interest in clinical legal experience which
began to be felt by law students and law faculties *** an increased
interest which fit nicely with the growing demands being placed on
the judicial system by the need to provide for the representation of
indigents” in the wake of Gideon v. Wainwright, 372 U.S. 335, 9 L.
Ed. 2d 799, 83 S. Ct. 792 (1963). Ill. Ann. Stat., ch. 110A, par. 711,
Historical & Practice Notes, at 592 (Smith-Hurd 1985). The court’s
reference to providing the right to counsel for indigents indicates that,
in criminal cases, this court was aware that Rule 711 would impact
the sixth amendment’s right to counsel.2
A criminal defendant’s constitutional right to counsel is
multifaceted. On the one hand, it includes the right to competent
counsel. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674,
104 S. Ct. 2052 (1984). On the other hand, it allows a defendant the
ability to participate in and make decisions concerning his defense,
including the right to waive counsel. Faretta v. California, 422 U.S.
806, 821, 45 L. Ed. 2d 562, 574, 95 S. Ct. 2525, 2534 (1975); see also
People v. Cox, 12 Ill. 2d 265, 270 (1957) (acknowledging that under
2
The rule itself provides that 711 students can only work in a “legal aid
bureau, legal assistance program, organization, or clinic *** the office of
the public defender; or *** a law office of the State or any its
subdivisions.” 210 Ill. 2d R. 711(b). While there are “law offices of the
State” that serve in a prosecutorial capacity such as the Attorney General,
the vast amount of offices that come under the rule’s purview are those that
give assistance to the poor. Private law firms cannot have students work for
them in the same capacity.
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both the federal and Illinois constitutions, “an accused may likewise
waive his right to representation by one licensed to practice law”).
This court has held that “counsel” for purposes of the sixth
amendment is not a mere formality; it means that only those persons
licensed under this court’s rules to practice law will be permitted to
defend a criminal defendant in our courtrooms. Cox, 12 Ill. 2d at 269.
That counsel must be licensed is critical. In fact, the familiar two-
pronged ineffective assistance of counsel standard announced in
Strickland was predicated on the presumption that decisions made by
an attorney, duly licensed and admitted to practice under state rules,
are legitimate matters of trial strategy and thus are subject to highly
deferential judicial scrutiny, free of the “distorting effects of
hindsight.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S.
Ct. at 2065.
Rule 711 was designed, then, not only to ensure that the
constitutional rights of those who receive student representation are
protected, but also to avoid abuses by them. Relevant here is
subsection (c), which provides the following:
“Under the supervision of a member of the bar of this State,
and with the written consent of the person on whose behalf he/she
is acting, which shall be filed in the case and brought to the
attention of the judge or presiding officer, an eligible law student
or graduate may render the following services:
***
He/She may appear in the trial courts and administrative
tribunals, subject to the following qualifications:
***
(i) Appearances, pleadings, motions, and other
documents to be filed with the court may be prepared by
the student or graduate and may be signed by him with the
accompanying designation ‘Senior Law Student’ or ‘Law
Graduate’ but must also be signed by the supervising
member of the bar.
(ii) In criminal cases, in which the penalty may be
imprisonment, in proceedings challenging sentences of
imprisonment, and in civil or criminal contempt
proceedings, the student or graduate may participate in
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pretrial, trial, and posttrial proceedings as an assistant of
the supervising member of the bar, who shall be present
and responsible for the conduct of the proceedings.
(iii) In all other civil and criminal cases the student or
graduate may conduct all pretrial, trial, and posttrial
proceedings, and the supervising member of the bar need
not be present.” (Emphasis added.) 210 Ill. 2d R. 711(c).
The plain language Rule 711 requires specifically that written
consent be obtained and that it “shall” be filed in the case. The
consent requirement of the rule, in conjunction with the presence of
a supervising attorney, are the preconditions to the student’s
participation in the case. Without written consent, spread of record,
and the presence of the supervising attorney, the student is
unauthorized to practice law in Illinois courtrooms.
The consent portion of the rule ensures, particularly in criminal
cases where the right to counsel is constitutionally guaranteed, that a
litigant knows and agrees to the proposition that someone who is not
licensed to practice law will be participating in the case on his behalf.
Rule 711 allows the litigant a choice–he can agree to the student
representation or refuse it. It is not forced on him. The consent
portion of the rule therefore serves a purpose–its requirement that
written consent be made a part of the record serves to safeguards
against litigants, particularly criminal defendants, from later arguing
on appeal that they did not know they were being represented by
students or did not consent to such representation. The agreement of
a criminal defendant that a law student, under the direct supervision
of counsel, could discharge some or all of counsel’s duties would
constitute a partial waiver of the right to competent (licensed) counsel
that is guaranteed by the sixth amendment. For that reason, I would
hold that the violation of the consent portion of Rule 711 requires a
new trial since the assistance of counsel is among those
“ ‘constitutional rights so basic to a fair trial that their infraction can
never be treated as harmless error.’ ” Holloway v. Arkansas, 435 U.S.
475, 489, 55 L. Ed. 2d 426, 437, 98 S. Ct. 1173, 1181 (1978), quoting
Chapman v. California, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 710, 87 S.
Ct. 824, 827-28 (1967).
My position is not new. Prior to the appellate court’s action here
in Smith, that was the law in Illinois. For example, in In re Moore, 63
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Ill. App. 3d 899 (1978), a new trial was ordered because the record
failed to disclose any affirmative signal that either the respondent or
the trial judge was aware of the law student’s 711 status. The
appellate court specifically emphasized that “[n]o written consent
form by respondent appear[ed] in the record.” Moore, 63 Ill. App. 3d
at 904.3 In People v. Schlaiss, 174 Ill. App. 3d 78 (1988), the court
reversed the defendant’s conviction because he had not consented to
representation by a law student and there was insufficient evidence in
the record to show that the defendant even knew he was being
represented by a law student.
I note, too, that courts from other jurisdictions have also held that
lack of consent is grounds for reversal. For example in People v.
Miller, 89 Cal. App. 3d Supp. 14, 152 Cal. Rptr. 707 (1979), the
California Court of Appeals ordered a new trial because the record
contained no written consent from the defendant allowing a law
student to discharge the duties that a licensed attorney would
normally do during the trial. The court specifically noted that
allowing a law student to take over various portions of the trial was,
in effect, a partial waiver of the defendant’s sixth amendment right to
counsel. Similarly, in In re C.B., 546 So. 2d 447 (Fla. App. 1989), the
Florida Court of Appeals reversed based on the lack of direct
evidence that the respondent had consented to the representation of
student intern. Although the State argued that the intern had informed
the respondent of her student status, the court found that to be “no
substitute” for proof in writing of actual consent to the representation.
C.B., 546 So. 2d at 448. See also In re L.S., 560 So. 2d 425 (Fla. App.
1990) (reversing based on lack of written consent without addressing
whether the intern was supervised); In re A.R., 554 So. 2d 640 (Fla.
App. 1989) (reversing for lack of consent waiver without addressing
the extent to which the intern had been supervised).
Not all cases, however, require per se reversals. Those cases
which have not ordered new proceedings did so because evidence in
the record established that the defendant was aware of the student’s
3
The court mischaracterizes Moore by implying that the appellate
court’s holding was grounded upon the lack of supervision by a licensed
attorney. Slip op. at 11. The focus of the court’s holding in Moore was on
the lack of consent and the lack of knowledge on the part of the trial judge.
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status. See State v. Dwyer, 181 Wis. 2d 826, 512 N.W.2d 233 (1994);
Jones v. State, 902 P.2d 686 (Wyo. 1995). That is not the case here.
In fact, my research indicates only one jurisdiction, Louisiana, which
regards the absence of required consent as cavalierly as the court does
here today. See State v. Edwards, 351 So. 2d 500 (La. 1977).
Like the court’s pronouncements that its rules are not mere
suggestions, the court is fond of saying that its rules are the equivalent
of statutes and are to be interpreted as such. Slip op. at 7. That, of
course, would mean that all of Rule 711’s terms are to be given the
effect of their plain, ordinary meaning. So, where is the meaning
given to the words “written consent”? Surely, when this court
promulgated the rule there was a purpose behind the words it used.
Today’s opinion omits any reference as to what that purpose may be.
Instead, although the court finds that Rule 711 was violated in both
cases by the failure to obtain the requisite written consent, that does
not end its “inquiry.” Slip op. at 8. It goes on to hold that even though
law students–like those in these cases–who have not complied with
the requirements of Rule 711 are “not counsel for constitutional
purposes” (slip op. at 9), the right to counsel has not been denied
because a supervising attorney is present. It is the presence of the
supervising attorney, according to the court, that preserves the right
to counsel under the sixth amendment.4 I strongly disagree.
The presence of the supervising attorney has nothing to do with
whether a litigant consented to have a student participate in his trial.
4
In structuring its analysis, the majority relies in large part on People v.
Perez, 24 Cal. 3d 133, 594 P.2d 1, 155 Cal. Rptr. 176 (1979). Perez,
however, is distinguishable because the record in that case contained a
written consent form that was signed by the defendant. Finding the consent
form valid, the court placed on defendant the burden of establishing that his
consent to such representation had been unknowing. Since the defendant
could not meet that burden, the student’s representation, in light of being
supervised by licensed counsel, did not violate the defendant’s right to
counsel. Moreover, the court held that the defendant’s written consent was
sufficient to satisfy constitutional requirements. I note that the appellate
court in Schlaiss specifically distinguished Perez on the basis that the
California Supreme Court was not faced with the lack of written consent
issue. Schlaiss, 174 Ill. App. 3d at 81.
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In criminal cases, the presence of the supervising attorney has nothing
to do with whether a defendant has agreed to waive his right to have
a licensed attorney participate in all facets of his defense. Thus, the
court has written out the consent provisions of Rule 711. Under
today’s analysis, a law student and the supervising licensed attorney
could work in a case, and the defendant would have no say in the
matter since a defendant does not have the right to choose one court-
appointed attorney over another. Clearly, criminal defendants with
monetary resources will not be put in this situation since Rule 711
applies only to law offices of the state and its subdivisions, such as
the public defender’s office, which supply appointed counsel. Those
with money will retain and pay a fee to licensed member of the bar.
Only the indigent, then, will face the prospect of having law students
unwittingly thrust upon them through appointed counsel. This leads,
in my view, to potential problems of inequality of representation
based upon a defendants’ economic status.
Turning to the consolidated matters here, in defendant Smith’s
case, the violation of the rule is clear. The record does not contain
Smith’s written consent to the student’s representation, and the
transcript does not indicate that the trial judge was made aware that
a 711 student was participating in the suppression hearing. I would
therefore grant Smith a new trial.
Respondent Denzel W.’s case is more problematic. By failing to
address the consent portion of the rule, the court bypasses the more
fundamental question of whether the rule even applies to juvenile
proceedings. Rule 711 states that eligible students may participate in
civil and criminal matters. The rule does not specifically refer to
juvenile proceedings, which are neither criminal nor civil
proceedings. See In re W.C., 167 Ill. 2d 307, 326 (1995) (recognizing
that a juvenile proceeding is “nonadversarial and designed to further
the best interests of the minor”).5
5
I note that several of our sister states have specifically included juvenile
proceedings in their student practice rules. See, e.g., Colo. Rev. Stat.
12–5–116.1 (2009); Ga. Sup. Ct. R. 91 (2009); Idaho Bar Comm’n R. 221;
Mass. Sup. Jud. Ct. R. 3:03 (2009); Neb. Ct. R. §3–702; Ohio Rules for the
Government of the Bar R. II; Oklahoma Supreme Court R. 7.7; Or. Bar
Admission R. 13.10 (2009); Washington Supreme Court R. 9.
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Assuming Rule 711 does apply to juvenile proceedings, this court
has incorporated many of the constitutional requirements of a
criminal trial into juvenile delinquency proceedings, including the
right to counsel. In re A.G., 195 Ill. 2d 313, 319 (2001). The right to
counsel, as I have previously explained, includes the right to waive
attorney representation. Rule 711 states that consent to the student
representation must be obtained from the party on whose behalf the
student will act. How should the consent contemplated in Rule 711
be given in juvenile proceedings? A juvenile may not understand the
implications of having a law student take on some advocate roles in
the trial; therefore, it would seem that the juvenile’s parent or
guardian would need to be the one to give the requisite consent under
the rule. Again, however, because the court summarily renders the
consent portion Rule 711 mere surplusage, it dodges the questions
surrounding whether a juvenile can even give the consent that Rule
711 would require if it is indeed applicable to juvenile proceedings.
In any event, no written consent appears in the record, signed by
either the respondent or his parents, and reversal would be required
on that basis if the rule is applicable in such proceedings.
Parenthetically, the court’s treatment of the juvenile case warrants
criticism for a further reason. The court states that the appellate court
is to determine whether the “trial court’s actions *** resulted in
respondent’s receiving ineffective assistance of counsel.” Slip op. at
12. I am not sure what that means–Does the appellate court have to
see if the trial court’s action violated Strickland? If so, how? By not
allowing the supervising attorney to take over the redirect
examination of Tequila, the trial court effectively denied respondent
the benefit of the supervising attorney’s expertise, a benefit that Rule
711 clearly contemplates will not be denied even though a student
may be assisting in the case. By not letting the supervising attorney
actually “supervise” the student, the trial court violated Rule 711 and
denied respondent his right to competent, licensed counsel during the
trial proceedings. Neither the respondent nor his licensed attorney
violated Rule 711 so the burden of establishing a Strickland violation
should not be placed upon him on appeal. There is no reason for a
remand under such circumstances.
Finally, I take issue with two other aspects of the court’s decision
today. First, there is the court’s references to the supervising attorney
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as a kind of filter that prevents the 711 student from making mistakes.
It is not always possible to glean from the transcripts the extent to
which a supervising attorney can control the student’s words and
actions. The transcript in the juvenile case reflects that even when a
supervising attorney wants to take control, he might not be able to do
so. More importantly, the immediate presence of an experienced,
supervising attorney cannot always prevent or undue the harm caused
by the unskilled student assistant, such as failing to lay the proper
foundation for impeachment, asking an overbroad question on cross-
examination, or clumsily handling the direct examination of a hostile
or difficult witness. Applying the Strickland standard, with its strong
presumption in favor of competence, will not always provide relief in
such circumstances. As the dissenting justice in Perez noted, there
“may be but one moment of time in the course of a trial when the
right act, word or decision can be made and the case won. *** If that
moment of opportunity passes, no amount of post-verdict advice to
or critique of the law student’s performance will give solace to a
defendant in prison.” Perez, 24 Cal. 3d at 151, 594 P.2d at 12, 155
Cal. Rptr. at 187 (Mosk, J., dissenting).
Second, there is the court’s references to the educational worth of
Rule 711 for law students. Slip op. at 7, 12. I understand this worth,
but it has absolutely no bearing on this case. The only relevant inquiry
is whether Smith and Denzel consented to the student’s
representation, not what educational opportunity is offered by that
representation.
JUSTICE BURKE joins in this dissent.
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