Thursday, December 9, 2010

Can Ineffective Assistance Claims be Heard by Courts Prior to Trial?

In People v. Jocko, No. 108465, slip op. (Ill. November 18, 2010), the Illinois Supreme Court decided "whether a circuit court is required to conduct an inquiry, prior to trial, into allegations of ineffective assistance of counsel that are raised by the defendant pro se." Jocko, No. 108465, slip op. at 1. The defendant in Jocko was charged with burglary and thereafter appointed a public defender (Public Defender 1), who entered a "not guilty" plea and filed a discovery motion. Id. at 2. Another public defender (Public Defender 2) took over the representation, filing a motion to quash arrest and suppress evidence, which was heard and denied. Id. Soon after the motion was denied, defendant filed a pro se "Motion to Dismiss Based on Due Process Violation," arguing that he was not provided with counsel for the arraignment and bail hearing. Id. Another public defender (Public Defender 3) was ultimately appointed to represent defendant at trial. Id.

In the record was an affidavit from defendant in support of a motion to suppress, stating that defendant was brought before the alleged victim without having a lawyer present and a letter stating that defendant had requested that certain evidence be introduced by his attorney but that his attorney failed to do so. Id. at 2-3. In addition to counsel's failure to enter defendant's evidence, defendant claimed that Public Defender 3 was "not 'fighting my case to the best of intrest [sic]." Jocko, No. 108465, slip op. at 3. The defendant was thereafter convicted and sentenced, and he appealed. Id. at 3.

On appeal, defendant argued that the court erred by not hearing his ineffective assistance claims before trial Id. Relying on People v. Krankel, 102 Ill. 2d 181 (1984), which "adopted a procedure that encourages the circuit court to fully address a defendant's claim of ineffective assistance" after trial, Id. at 4, defendant argued that the post-trial ineffective assistance inquiry should be applied to pro se pre-trial ineffective claims. Id. at 3. The Appellate Court agreed, and the cause was remanded for the purpose of inquiring into defendant's pre-trial ineffective assistance claims. Id. at 3. The State appealed the decision, arguing that Krankel was inapposite to the facts in Jocko.

Ineffective assistance of counsel claims are analyzed under the test announced in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, to prove ineffective assistance of counsel, the defendant must demonstrate that 1) counsel's performance was deficient, and 2) that there was a reasonable probability that but-for counsel's deficient performance, the results of the proceeding would have been different. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The Jocko court did not address whether counsel's performance was deficient because it determined that "until the proceedings have concluded, there is no way to determine if counsel's errors affected the outcome and, therefore, no way of establishing prejudice under Strickland..." Jocko, No. 108465, slip op. at 4-5. In other words, it did not matter whether counsel's performance was deficient because without conducting the trial, there was no way of determining whether that deficiency affected the the outcome of defendant's case.

I agree with the Court's decision not to apply Krankel to pre-trial ineffective assistance claims. It is possible that defense counsel will make errors prior to trial that may or may not affect the final outcome of the defendant's case. Without reaching that outcome, the defendant will never know how counsel's pre-trial error affected the outcome. If the error was minor and would not end up affecting the outcome, then the court's time would be wasted by hearing numerous ineffective assistance claims made my defendants who perhaps do not agree with or understand their attorney's legal strategies. If the error is major, it can still be argued after trial in post-trial motions. In either case, it is in the interest of judicial economy to just "wait and see what happens."

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