People v. Buckhanan , 2017 IL App (1st) 131097 ( 2017 )

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People v. Buckhanan, 2017 IL App (1st) 131097
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BRYANT BUCKHANAN, Defendant-Appellant.
District & No. First District, Second Division
Docket No. 1-13-1097
Filed February 7, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 08-CR-3237; the
Review Hon. Lawrence E. Flood and the Hon. Dennis J. Porter, Judges,
presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Michael H. Orenstein, all
Appeal of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
John E. Nowak, Janet C. Mahoney, and Brian A. Levitsky, Assistant
State’s Attorneys, of counsel), for the People.
Panel JUSTICE MASON delivered the judgment of the court, with opinion.
Justices Lavin and Pucinski concurred in the judgment and opinion.
OPINION
¶1 For six years prior to 2009, Samuel E. Adam, Jr. (Junior) had represented defendant Bryant
Buckhanan on a number of criminal matters. On January 11, 2008, the State filed a complaint
(later superseded by indictment) charging Buckhanan with the August 19, 2007, murder of
Omari Houston. On the same date the complaint was filed, Junior filed an appearance on
Buckhanan’s behalf.1
¶2 More than a year and a half later, the State sought to disqualify Junior from representing
Buckhanan on the ground that Junior’s father, Samuel F. Adam, Sr. (Senior), represented
Gabrielle Gambrell, Buckhanan’s girlfriend and a witness the State planned to call at trial. The
conflict identified by the State in its motion was the possibility that if Gambrell’s trial
testimony varied from a statement she made to the police in September 2007, the State would
call Senior—who was present for the statement—to impeach his client. Notwithstanding the
fact that (i) there were other witnesses to Gambrell’s statement, namely, a police detective and
an assistant State’s Attorney, thus clearly rendering Senior’s testimony unnecessary and (ii)
the State identified no material variance between Gambrell’s statement and her grand jury
testimony, the trial court ordered a hearing on the State’s motion.
¶3 After the hearing, during which Senior testified that he did not recall Gambrell making one
of the statements attributed to her in the summary of her statement to the police (so that he
would, therefore, not impeach Gambrell on that point), the State changed tack and argued that
Junior would be obligated to call his father as a witness in Buckhanan’s defense (presumably to
attest to his lack of recall of a portion of Gambrell’s statement) or be deemed ineffective for
failing to do so. Without articulating any actual or potential “conflict” inherent in this new
scenario, the State argued that the possibility of Junior calling Senior as a witness created the
appearance of impropriety justifying Junior’s disqualification.
¶4 The trial court agreed and granted the State’s motion. In the course of its ruling, the trial
court specifically found that there was no unethical exchange of confidential information
between Senior and Junior.
¶5 We reverse the disqualification of Buckhanan’s counsel and remand for a new trial.
Nothing in the State’s theory of disqualification, either as originally articulated or as revised
after the hearing, warranted depriving Buckhanan of his chosen counsel. And although the
State’s evidence was more than sufficient to sustain Buckhanan’s conviction, the error in
disqualifying his attorney, standing alone, mandates reversal of the circuit court’s judgment
and remand for a new trial.
¶6 BACKGROUND
¶7 Almost immediately after Houston’s murder, police focused on Buckhanan given that
several witnesses implicated him in the murder and identified him in a photo array.
Buckhanan’s loaner car from an automobile dealership—also identified by several witnesses
as being present at the scene of the murder—was found in a ditch the day after the murder with
papers identifying Buckhanan and the keys still in the ignition.
1
Judge Flood presided over the hearing on the State’s motion for disqualification. Judge Porter
presided over the trial.
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¶8 The police had several addresses where they searched for Buckhanan after the murder,
including an apartment in Woodridge where he resided with Gambrell and their infant child.
After Gambrell felt the police were harassing her, she eventually contacted Senior in
September 2007, and he agreed to represent her. Gambrell did not witness the shooting; rather,
the State intended to call her to establish Buckhanan’s flight the day after the murder.
Gambrell’s anticipated testimony was based on a statement she gave to police on September
12, 2007, and testimony she gave before a grand jury on February 5, 2008, after Buckhanan’s
arrest.
¶9 In her 2007 statement to police, which police later summarized, Gambrell stated that on the
morning after the shooting, she received a phone call from Buckhanan informing her that
someone had run his car into a ditch on I-88. Gambrell, who was not at home when she
received Buckhanan’s call, returned to the apartment and, on the way, drove down I-88 and
determined that Buckhanan’s car was no longer in the ditch. She then met Buckhanan briefly at
their apartment. According to the summary, Buckhanan informed Gambrell that he had called
the Illinois State Police about the loaner vehicle, and they told him to contact homicide
detectives. A short time later, Buckhanan left without telling Gambrell where he was going.
Gambrell met with and spoke to Buckhanan after August 18, but he did not return to their
apartment before his arrest.
¶ 10 There is no indication in the record that Gambrell was shown the summary of her statement
or asked to sign or initial it. The summary concludes with the statement that after the interview
was completed, the assistant State’s Attorney who was present decided not to call Gambrell
before the grand jury.
¶ 11 Buckhanan was apprehended by police in connection with Houston’s murder on January 9,
2008. As noted, Junior filed his appearance for Buckhanan on January 11, 2008.
¶ 12 The State did ultimately summon Gambrell to testify before the grand jury and her
February 2008 testimony was substantially similar to her statement to the police, except that
when she was asked whether Buckhanan told her “he had received a call from the State
Police,” Gambrell testified that she did not recall him saying that. Further, when asked if
Buckhanan told her the Chicago police were looking for him, Gambrell responded, “I don’t
remember if he told me right then. I don’t remember. I mean I knew later, but I don’t remember
if he told me at that point.” In her grand jury testimony, Gambrell was not asked whether
Buckhanan told her (1) he had called the Illinois State Police and (2) the Illinois State Police
told him to contact homicide detectives.
¶ 13 The State hoped that Gambrell would testify consistently with her 2007 police statement.
In particular, they wanted her to say that Buckhanan had been told to contact homicide
detectives, to show that Buckhanan knew the police were looking for him in regards to a
murder investigation.
¶ 14 The State’s motion to disqualify was filed on September 30, 2009. At the time the motion
was filed, trial was scheduled to commence three weeks later on October 19, 2009. In its
motion, the State represented that in the event Gambrell denied that Buckhanan told her the
Illinois State Police advised him to contact homicide detectives, the State would “possibly”
call Senior to impeach her—thus opening the door for the jury to find out that defense
counsel’s father represented a witness for the State.
¶ 15 The State argued that Junior should be disqualified for two reasons: first, it asserted that,
through his father, Junior had access to confidential information about Gambrell that would
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give the defense an unfair advantage; second, it argued that if the jury learned Junior’s father
represented a State witness, it would create an appearance of impropriety. The State admitted
that it had been aware that Junior was representing Buckhanan since August 19, 2007 (the day
of the murder), when Junior called Area 4 and informed a detective that he was Buckhanan’s
attorney. The State was also aware that Senior was representing Gambrell no later than
September 12, 2007, since he accompanied her when she made her statement to the police.
¶ 16 Junior filed a response to the State’s motion to disqualify in which he stated that both he
and his father were solo practitioners and had never worked in partnership with each other;
additionally, Senior never disclosed to him any confidential information regarding Gambrell.
Junior also challenged the basis for the State’s disqualification motion by pointing out that
Gambrell’s statement to police was not inconsistent with her grand jury testimony.
Furthermore, Junior stated that he had represented Buckhanan in the current action for over
two years (measured from the date Junior first informed police he was representing
Buckhanan), and he had a relationship with Buckhanan for over six years, during which he
represented him in various other criminal cases. Buckhanan wished to keep him as counsel and
waived any conflict that might arise from Junior’s continued representation. Both Junior and
Buckhanan signed the response to the State’s motion.
¶ 17 At the hearing on the motion for disqualification, Buckhanan formally waived any conflict
of interest. Senior, the only witness, testified that he and his son were solo practitioners,
although they were serving as cocounsel for defendants in three ongoing (and unrelated)
criminal cases. He and Junior shared an office at 6133 South Ellis Avenue along with six other
attorneys. In 2007, Senior’s primary office was at 53 West Jackson Boulevard, but he would
sometimes meet clients at his son’s 6133 South Ellis Avenue office.
¶ 18 Senior testified that he had never represented Buckhanan on any civil or criminal matters.
Although he was not Buckhanan’s attorney, on multiple occasions he appeared in Buckhanan’s
case to ask for continuances when Junior was unavailable. On those occasions, Senior also
talked to Buckhanan’s family to explain why Junior could not appear.
¶ 19 In September 2007, a relative or friend called Senior on Gambrell’s behalf. During that
phone conversation, Gambrell got on the phone and told Senior that police were harassing her
and she was afraid to go home. Senior arranged for Gambrell to meet him at Junior’s office.
When Gambrell arrived, Junior was present; he recognized Gambrell and said, “I can’t talk to
her.” Senior spoke with Gambrell in private, out of Junior’s presence, and agreed to represent
her. Shortly thereafter, Senior contacted the police department to state that he was representing
Gambrell and she did not wish to speak to any officers in connection with their investigation.
¶ 20 On September 12, 2007, Gambrell was summoned to the courthouse, where Senior allowed
her to speak to police in his presence. Senior testified that the police report of the meeting was
mostly correct, but he did not recall Gambrell making one specific statement in the report that
the State wanted to elicit at trial (i.e., that Buckhanan told Gambrell that he had called the
Illinois State Police about his car and they told him to contact homicide detectives).
¶ 21 Buckhanan was not apprehended until January 9, 2008. A month later, on February 5,
2008, Gambrell testified before a grand jury, again in Senior’s presence. After Gambrell’s
grand jury testimony, Senior’s contact with her was limited to one or two phone calls, as well
as seeing her in the courtroom on “several dates” when he was continuing Buckhanan’s case.
But pursuant to their agreement, Senior was still her attorney.
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¶ 22 Senior denied disclosing to Junior any confidential information regarding Gambrell. He
admitted that after Gambrell gave her statement to police on September 12, 2007, Senior
“briefly” told Junior the contents of that statement. Also, after Gambrell testified before the
grand jury on February 5, 2008, Senior told Junior that she said “substantially what she had
said before the assistant State’s attorney,” though he never laid out the specifics of her
testimony.
¶ 23 During argument on the motion, the State represented to the court that Gambrell’s disputed
statement in the 2007 police report was significant because it showed that Buckhanan knew he
was wanted in connection with a homicide investigation. It contended that if Gambrell denied
her statement, then “[c]learly, the State has to call the State’s Attorney as a witness” to
impeach her. In that case, Junior would likely want to call Senior to the stand to “rehabilitate”
Gambrell. In fact, the State said that Junior would have to call Senior, since failure to do so
would be ineffective assistance of counsel. Junior, for his part, noted that the State had
reversed its position on Senior’s testimony since it filed its disqualification motion: initially,
the State said that it might call Senior, but now, it said that Junior might call Senior. Junior
argued that this change of position was evidence that the State brought the disqualification
motion in bad faith. The trial court disagreed, saying that it was a reasonable change in light of
Senior’s testimony that he did not recall Gambrell making that statement.
¶ 24 The trial court granted the State’s motion to disqualify Junior as Buckhanan’s attorney. In
doing so, it agreed with the State’s assertion that Gambrell’s disputed statement was probative
as to Buckhanan’s state of mind. Based on the possibility that Junior would call Senior to
testify regarding that statement, the court believed there was a serious potential for conflict.
The court found that Junior’s continued representation of Buckhanan could impact the State’s
right to a fair trial, since he could potentially access confidential information about Gambrell
that would give the defense an unfair advantage. It also found that there was a risk of the
appearance of impropriety if the jury were to find out that the father of the defendant’s lawyer
represented one of the State’s witnesses. But the court also stated: “I must emphasize that in
indicating this, I am not *** indicating at all that anything that was done by Mr. Sam Adam Jr.
or Sam Adam Sr. was any way unethical. This is a question of the appearance of impropriety.”
Additionally, the court found that there was no indication of overreaching or bad faith on the
part of the State.
¶ 25 ANALYSIS
¶ 26 The sixth amendment provides that a defendant in a criminal prosecution has a right to the
assistance of counsel. U.S. Const., amend. VI. As part of this right, there is a presumption in
favor of defendant’s counsel of choice. People v. Holmes, 141 Ill. 2d 204, 223 (1990) (quoting
Wheat v. United States, 486 U.S. 153, 164 (1988)); see also United States v. Gonzalez-Lopez,
548 U.S. 140, 146 (2006) (the sixth amendment “commands *** that the accused be defended
by the counsel he believes to be best”). But this presumption may be overcome if the State
proves that there is either an actual conflict of interest or a serious potential for conflict. Wheat,
486 U.S. at 164; Rodriguez v. Chandler, 382 F.3d 670, 672 (7th Cir. 2004) (burden of proof
lies with State).
¶ 27 In Illinois, a two-part test governs State challenges to the defendant’s counsel of choice.
First, the court must determine whether defense counsel has “a specific professional obligation
that actually does conflict or has a serious potential to conflict with defendant’s interests.”
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People v. Ortega, 209 Ill. 2d 354, 361 (2004). If the answer is yes, then the court must
determine whether the interests threatened by that conflict are weighty enough to overcome the
presumption in favor of defendant’s counsel of choice. Id. In weighing the interests, courts
consider the likelihood that a conflict will actually occur, since “a conflict that would seriously
undermine counsel’s effectiveness is not a basis for disqualification if it has little likelihood of
occurring.” United States v. Turner, 594 F.3d 946, 952 (7th Cir. 2010). Courts also frequently
consider
“(1) the defendant’s interest in having the undivided loyalty of counsel; (2) the State’s
right to a fair trial in which defense counsel acts ethically and does not use confidential
information to attack a State’s witness; (3) the appearance of impropriety should the
jury learn of the conflict; (4) the probability that continued representation by counsel of
choice will provide grounds for overturning a conviction.” Ortega, 209 Ill. 2d at
361-62.
Furthermore, where appropriate, the court should consider whether there are alternatives to
disqualification that would remove the conflict while still protecting defendant’s right to
counsel. Turner, 594 F.3d at 952. We review the trial court’s decision to disqualify counsel for
an abuse of discretion, keeping in mind that trial courts need “ ‘substantial latitude’ ” in
making such decisions because it is not always apparent before trial whether and in what ways
a conflict might arise. Ortega, 209 Ill. 2d at 358 (quoting Wheat, 486 U.S. at 163).
¶ 28 Our first question is whether the trial court could reasonably have found at least a serious
potential for conflict arising from Junior’s representation of Buckhanan. Buckhanan argues
that there was no potential for conflict, since Junior and Senior are both sole practitioners. The
State contends that, although they are not formally associated in a firm, their professional
relationship is close enough that they can be considered members of the same firm for conflicts
purposes. Although it made no express finding on the point, the trial court apparently agreed.
¶ 29 Rule 1.10(a) of the Illinois Rules of Professional Conduct states, in relevant part, “While
lawyers are associated in a firm, none of them shall knowingly represent a client when any one
of them practicing alone would be prohibited from doing so ***.” Ill. R. Prof’l Conduct (2010)
R. 1.10(a) (eff. Jan. 1, 2010). Comment 2 to Rule 1.0 elaborates on what it means for lawyers
to be “in a firm”:
“Whether two or more lawyers constitute a firm *** can depend on the specific facts.
For example, two practitioners who share office space and occasionally consult or
assist each other ordinarily would not be regarded as constituting a firm. However, if
they present themselves to the public in a way that suggests that they are a firm or
conduct themselves as a firm, they should be regarded as a firm for purposes of the
Rules. The terms of any formal agreement between associated lawyers are relevant in
determining whether they are a firm, as is the fact that they have mutual access to
information concerning the clients they serve.” Ill. R. Prof’l Conduct (2010) R. 1.0,
cmt. 2 (eff. Jan. 1, 2016).
Although Senior and Junior were not formally associated in a law firm, it is at least arguable
that they constitute a firm under Rule 1.0, given their closeness of their professional
relationship. They acted as cocounsel in various criminal matters, shared office space, and
Senior covered for Junior in a number of court appearances in this case. But even if we assume,
for the sake of argument, that their relationship could give rise to some potential for conflict,
we find that the interests threatened by that potential for conflict are not enough to overcome
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the constitutional presumption in favor of Buckhanan’s counsel of choice. Ortega, 209 Ill. 2d
at 361.
¶ 30 The parties agree that Buckhanan’s interest in having the undivided loyalty of counsel is
not implicated here, since Buckhanan waived any conflict. The State nevertheless argues that
disqualification was necessary for two reasons: first, that exchange of confidential information
between Senior and Junior could give the defense an unfair advantage; and second, that there
was a purported inconsistency between Gambrell’s statement to police and her grand jury
testimony, which might indicate that she would recant the former at trial, which might lead the
parties to call Senior to either impeach or rehabilitate her, and which might create an
appearance of impropriety in the eyes of the jury. But the first of these reasons was soundly
refuted by Senior’s testimony and the trial court’s findings, while the second was groundless
from its inception, since Gambrell’s statements did not actually contradict each other. Thus,
the entire basis of the State’s argument is meritless.
¶ 31 We note at the outset that the timing of the disqualification motion calls into question its
bona fides. The State had been aware since September 2007 that Gambrell was a potential
witness and was represented by Senior. Junior informed police that he was representing
Buckhanan on August 19, 2007, and he filed his appearance for Buckhanan in January 2008. If
the State was truly concerned that Gambrell would “recant” her statement to the police based
on her grand jury testimony, that would have been obvious by February 2008. On July 30,
2009, the parties agreed to a trial date of October 19, 2009; the State did not move to disqualify
Junior until September 30, less than one month before the scheduled trial. If the State had
concerns about a potential conflict of interest or the supposed “unfair advantage” Senior’s
representation of Gambrell gave Junior, it could have raised them long before trial. Instead, the
State did nothing for more than two years, waiting until the eve of trial to file its
disqualification motion.
¶ 32 Like the timing of the motion, its substance was dubious. With regard to exchange of
confidential information, Senior testified, without contradiction, that he did not disclose any
confidential information about Gambrell to Junior. The trial court evidently found this
testimony credible, since it found that neither Senior nor Junior did anything unethical. See Ill.
R. Prof’l Conduct (2010) R. 1.6(a) (eff. Jan. 1, 2010) (unethical for attorney to reveal
information relating to the representation of a client). Thus, there was no concern that Junior
had confidential information about Gambrell that he might use to cross-examine her or
otherwise bolster the defense.
¶ 33 The State suggests that, at some unspecified time in the future, Junior might
“inadvertently” have obtained confidential information about the People’s case, but it presents
no explanation as to how this would occur. Certainly the State’s Attorney would not share
confidences or trial strategy with a State witness, particularly one represented by a lawyer with
connections to defense counsel. And from the record before us, we cannot discern what
information Junior could have gained from Senior—inadvertently or otherwise—that would
have allowed him an unfair advantage in cross-examining Gambrell. The evidence of
Buckhanan’s flight after the murder is undisputed. And if Gambrell had a criminal record that
would call into question her credibility, that information would be equally available to both
sides. Other than the unsupported suggestion that Senior would act unethically and share client
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confidences with Junior, 2 the State does not articulate how Senior’s representation of
Gambrell posed any threat to its right to a fair trial. Such vague and unsupported speculation is
insufficient to overcome the constitutional presumption in favor of a defendant’s counsel of
choice.
¶ 34 We note that People v. Nevarez, 2012 IL App (1st) 093414, cited by the State on this issue,
is readily distinguishable. In Nevarez, Junior represented the defendant, while Senior
represented two State witnesses and was present as they were interviewed by prosecutors and
detectives. The Nevarez court found that Senior could not later appear as defendant’s
cocounsel. Id. ¶ 61. (Junior’s representation of defendant was apparently not challenged, and
he continued to represent the defendant through the trial.) Contrary to the State’s contention,
this is not at all analogous to the present case. A single attorney cannot represent both
prosecution witnesses and the defendant in connection with the same case because it creates a
legitimate concern that the attorney’s knowledge of client confidences might give him an
unfair advantage in cross-examining those witnesses. Id. ¶¶ 60-61. As discussed, there is no
such concern in this case, where Senior has never disclosed client confidences to Junior and is
not himself seeking to represent Buckhanan.
¶ 35 The State’s remaining argument centers upon a purported contradiction between
Gambrell’s statement to police and her grand jury testimony. But, as noted, examination of
these statements reveals no contradiction. According to the report of Gambrell’s statement to
police, on the morning after the murder, “Buckhanan informed Gambrelle [sic] that he had
called the State Police and they informed him that he had to call Homicide Detectives.”
Meanwhile, in her grand jury testimony, Gambrell gave the following testimony about her
meeting with Buckhanan:
“Q. Did [Buckhanan] tell you whether or not he had received a call from the State
Police?
A. No, he didn’t say. I don’t remember him saying that.
Q. Did he ever tell you whether or not Chicago Police Detectives were looking for
him?
A. I don’t remember if he told me right then. I don’t remember. I mean I knew later,
but I don’t remember if he told me at that point.” (Emphasis added.)
Gambrell was not asked in her grand jury testimony whether Buckhanan told her that he had
called the Illinois State Police. Conversely, in her statement to police, Gambrell did not say
that Buckhanan told her that detectives were looking for him. Rather, the State hoped to infer
from Buckhanan’s statement that the Illinois State Police told him to call homicide detectives
that Buckhanan must have known that the police were looking for him in connection with the
murder. Thus, there is no inconsistency between these statements. Using these statements as a
basis for claiming that Gambrell would “recant” her statement to police, thus necessitating that
witnesses be called first to impeach and then to rehabilitate her, is without merit.
¶ 36 Moreover, even if Gambrell did happen to “recant,” and the State decided to call a witness
to impeach her, and Junior responded by calling Senior to rehabilitate her—a rather remote
chain of events—the most the State argues this gives rise to is an appearance of impropriety.
2
Of course, nothing prevented Gambrell from communicating any information she chose to
Buckhanan and nothing prevented Buckhanan from revealing this information to his attorney.
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And the appearance of impropriety alone is a slender reed on which to justify disqualification
of counsel. As stated by the Supreme Court of Georgia: “The mere fact that the public may
perceive some conduct as improper is, without some actual impropriety, insufficient
justification for interference with a client’s right to counsel of choice. This becomes even more
apparent when the perceived impropriety is not conduct at all but is, instead, status.”
Blumenfeld v. Borenstein, 276 S.E.2d 607, 609 (Ga. 1981) (refusing to disqualify attorney
merely because attorney’s spouse had previously represented the opposing party; evidence
showed that attorney’s spouse had never revealed client confidences or otherwise acted
unethically); see also United States v. Washington, 797 F.2d 1461, 1466 (9th Cir. 1986) (“We
have grave doubts whether an appearance of impropriety would ever create a sufficiently
serious threat to public confidence in the integrity of the judicial process to justify overriding
Sixth Amendment rights.”). As noted, the trial court explicitly found that neither Junior nor
Senior committed any actual impropriety in their representation of their clients, so the mere
appearance of impropriety should not be controlling.
¶ 37 More importantly, the potential for any appearance of impropriety could easily have been
cured if the parties stipulated to Senior’s testimony. See Turner, 594 F.3d at 952 (court should
consider whether there are alternatives to disqualification that would remove the conflict while
still protecting defendant’s right to counsel). Specifically, the parties could have stipulated that
if called to the stand, Gambrell’s attorney would testify that he was present when Gambrell
made her 2007 statement to police, and he did not recall her saying that Buckhanan told her he
had been told to contact homicide detectives. By using a stipulation to avoid mention of
Senior’s name or his relationship to defense counsel, there would be no risk of any appearance
of impropriety in the eyes of the jury.
¶ 38 The State emphasizes that the propriety of the disqualification must not be judged in
hindsight because trial judges cannot be expected to anticipate all conflicts that may arise in the
course of a trial. See Wheat, 486 U.S. at 162 (trial court “must pass on the issue of whether or
not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of
hindsight after the trial has taken place, but in the murkier pretrial context when relationships
between parties are seen through a glass, darkly”). But by the same token, a trial judge who is
not privy to the evidence the State has amassed in support of its case is not in a position to
second-guess prosecutors when they insist on the importance of certain evidence. And by
September 2009, the State certainly knew the evidence it possessed.
¶ 39 At the disqualification hearing, the State told the judge that it intended to use Gambrell’s
testimony regarding her conversation with Buckhanan the day after the murder to show that
Buckhanan knew he was wanted in a homicide investigation, thus explaining his abrupt
departure. The experienced and respected trial judge was entitled to accept the State’s assertion
at face value. He found that the disputed statement was probative as to Buckhanan’s state of
mind and attempting to elicit that statement could possibly result in Junior having to
cross-examine his father. What the trial court could not have known at that point was the
abundant evidence of Buckhanan’s flight in the State’s possession wholly apart from
Gambrell’s testimony.
¶ 40 First and foremost, the State had Gambrell’s testimony that, on the morning after the
shooting, Buckhanan left their apartment without packing his bags or telling Gambrell where
he was going and he never returned. Thus, the State was perfectly able to make its point about
Buckhanan’s abrupt abandonment of his girlfriend, his child and his home (and the
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consciousness of guilt such conduct implied) without inquiring into the substance of his
conversation with Gambrell. The State never suggested that Gambrell would recant this
consistent aspect of both her statement to police and her grand jury testimony.
¶ 41 The State also had numerous other witnesses to testify on the subject of Buckhanan’s
flight. For instance, a vehicle service consultant for Infiniti of Lisle testified that Buckhanan
brought in his car for repair and was issued a loaner car on the day before the shooting. A
couple of hours after the shooting, a state trooper found the loaner car in a highway ditch with
its keys in the ignition. Buckhanan never returned to Infiniti of Lisle to retrieve his car or pay
his repair bill. Moreover, detectives testified that several months after the shooting, Buckhanan
fled a vehicle stop, leading them on a several-block foot chase before he was apprehended.
¶ 42 Certainly had the trial court been aware of the relative insignificance of Gambrell’s
post-murder conversation with Buckhanan, its analysis of the relevant factors might well have
resulted in denial of the State’s disqualification motion. And, in fact, once the State’s
disqualification motion was granted and the case proceeded to trial with substitute counsel, the
State made no attempt to elicit this evidence from Gambrell. In fact, the State did not ask
Gambrell anything about the content of her conversation with Buckhanan on the morning after
the murder. More than anything else, this leads us to question the State’s good faith in
depriving Buckhanan of his counsel of choice on the representation that the State planned to
elicit this information at trial.
¶ 43 The State additionally argues that if Junior had continued representing Buckhanan, and he
was convicted, Buckhanan could have appealed on grounds that his trial counsel was
constitutionally ineffective for having labored under a conflict of interest. But Buckhanan
waived any conflict in open court after indicating that he read Junior’s response to the State’s
disqualification motion. See People v. Robinson, 79 Ill. 2d 147, 166 (1979) (upholding
conviction where defendant argued that his counsel had a conflict of interest, but defendant
made a knowing and intelligent waiver of any conflict). We note that the State does not argue
that Buckhanan’s waiver was uninformed or otherwise ineffective. Additionally, to use the
words of the Robinson court, Buckhanan’s decision to waive any conflict “does not appear
imprudent” (id.) given the tenuous nature of the potential conflict and Junior’s long
professional relationship with Buckhanan.
¶ 44 Finally, the State argues that Buckhanan could have taken an interlocutory appeal of the
disqualification order, rather than proceeding to trial with substitute counsel and then raising
the issue following his conviction. See Ill. S. Ct. R. 604(g) (eff. July 1, 2006) (a criminal
defendant “may petition for leave to appeal” the circuit court’s disqualification of his attorney
based on a conflict of interest (emphasis added)). The State implies that Buckhanan’s failure to
pursue an interlocutory appeal might have been a strategic ploy to obtain “two bites of the
apple.” We find such speculation to be both unsupported and implausible. When Buckhanan’s
counsel was disqualified on November 16, 2009, Buckhanan had been in custody for nearly
two years. He could logically have decided that it best served his interests to proceed to trial,
instead of filing an appeal that would delay his trial date—and extend his jail stay—for at least
another year. But in any event, the plain language of Rule 604(g) provides that interlocutory
appeals of disqualification orders are permissive rather than mandatory, and the State does not
cite any authority to the contrary.
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¶ 45 CONCLUSION
¶ 46 We hold that the trial court’s disqualification order violated Buckhanan’s sixth amendment
right to choose his own counsel. Under Gonzalez-Lopez, 548 U.S. at 148-51, this constitutional
violation is a structural error not subject to harmless-error review. We therefore reverse
Buckhanan’s conviction and remand for retrial. Because we are reversing his conviction, we
need not consider Buckhanan’s contentions that he was prejudiced by the performance of
substitute counsel.
¶ 47 Reversed and remanded.
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