Information Acquired from Mainstream Internet Sites is Reliable Enough to Support a Request for Judicial Notice

In People v. Clark, No. 2-09-0102 (December 16, 2010), the Second District Appellate Court upheld the conviction for a drug transaction that took place within 1000 feet of a public park, relying in part on a Google Map submitted by the prosecution. 

The court stated "information acquired from mainstream Internet sites such as Map Quest and Google Maps is reliable enough to support a request for judicial notice," thereby holding that these maps should be presumptively admissible in lawsuits.

The DeKalb County State's Attorney's Office is Hiring.

The DeKalb County State’s Attorney’s Office is seeking a motivated, articulate attorney to prosecute traffic/misdemeanor/child support cases as an assistant state’s attorney. Must be willing to try cases. Entry level salary with full benefits. Please send resume with copy of current ARDC registration to Kelly Newton via email at: knewton@dekalbcounty.org or via facsimile at: (815) 895-7101. Application deadline is February 25, 2011.

Why Resisting a Police Officer Requires a Physical Act of Obstruction

When I first read the Third District's recent decision in People v. Berardi, No. 3-10-0122, slip op. (3rd Dist. January 21, 2011), I immediately thought of one of my favorite television shows, Parks and Recreation. The incident in Berardi, which occurred in Canton, IL (pop. 15,288), might as well have occurred in the fictional town of Pawnee, IN. I can at least envision the same situation unfolding there.

In Berardi, defendant, who was a Canton alderman, called the Canton City Hall and requested a copy of the city budget, after a notice had been posted in a local newspaper that "the city's budget was then available for viewing during normal business hours." Id. at 2. Defendant had called on a Friday, and an election was scheduled for the following Tuesday. Id. Defendant was told that he could obtain a copy of the budget at city hall. Id. at 3. Defendant was then called by the city's budget director and told that the budget was not available at this time, despite the notice in the paper and the phone call he had just made. Id. Defendant then went down to city hall, along with two companions, where he went straight to the budget director's office. Id. The budget director informed defendant that "the mayor had directed him not to distribute copies of the budget until the following Monday." Berardi, No. 3-10-0122, slip op.at 3. Defendant then went to the city clerk's office, again asking for a copy of the budget. Id. A deputy clerk told the defendant that he would have to "discuss any issues concerning the budget with the budget director" (with whom defendant had just spoken). Id. After telling defendant this, the deputy clerk went to the budget director's office and called police to "report a disturbance and to express her belief there was a need for security in the building." Id.

When the chief of police arrived, he "proceeded directly to the budget director's office and spoke with the budget director and the clerk." Id. at 4. The budget director only asked the officer if he could leave, which he did, along with the clerk, after the officer told him he could do so. Berardi, No. 3-10-0122, slip op. at 4. The officer then went to the city attorney's office to determine when the budget would become available, but the city attorney was not in her office. Id. When the officer returned to the common area, the defendant was videotaping through a window in the budget director's office in an attempt to "obtain an image of copies of the budget in boxes in the office." Id. The officer then told the defendant that he had to leave because all the employees had left. Id. The officer told him '''If you don't leave, you are going to get arrested. And he said I'm not leaving. And I said, well, you're under arrest.'" Id. at 5 The police officer then asked defendant to "accompany him downstairs to the police department" for booking. Berardi, No. 3-10-0122, slip op. at 6.

The defendant was charged with resisting a police officer under 720 ILCS 5/31-1 (West 2006). Id. at 8. A defendant can be convicted under 5/31-1 if he "knowingly resists or obstructs the performance by one known to the person to be a peace officer, firefighter, or correctional institution employee of any authorized act within his official capacity…" At trial, defense counsel "requested the trial court to instruct the jury that some use of force is required to find that a person has resisted an authorized act in violation of section 31-1," which the trial court refused to do. Id. Defendant was then convicted, and he appealed. Id.

The issue on appeal was whether the alderman's refusal to leave at the command of the police chief constituted "resistance" under 5/31-1. See id. at 9. In People v. Raby, 40 Ill. 2d 392, 399, the Illinois Supreme Court held that 31-1 "do[es] not proscribe mere argument with a policeman about the validity of an arrest or other police action, but proscribe[s] only some physical act which imposes an obstacle which may impede, hinder, interrupt, prevent or delay the performance of the officer's duties,such as going limp, forcefully resisting arrest or physically aiding a third party to avoid arrest." (emphasis added). The defendant argued that "mere argument with a peace officer is not prohibited under section 31-1 and that his [defendant's] failure to abide by [Officer] Taylor's command is insufficient to support his conviction." Berardi, No. 3-10-0122, slip op. at 9. The State argued that defendant's repeated refusal to leave constituted obstruction because it hindered or impeded the officer's ability to "secure the private office space when no employees were present" and that defendant's refusal to leave was "equivalent to going limp." Id.

The Berardi Court held that defendant's refusal to leave at the command of the police chief did not constitute resistance under 31-1 because 31-1 "'does not prohibit a person from verbally resisting or arguing with a police officer about the validity of an arrest other police action…Verbal resistance or argument alone, even the use of abusive language, is not a violation of a statute," see id. at 10 (citing People v. McCoy, 378 Ill. App. 3d 954, 962 (2008)), and the defendant's conviction was reversed. Id. at 12.

While the humorous facts of the case conjure images of the inept bureaucrats in Pawnee's city hall, Berardi reminds us that a physical act is required in order to sustain a conviction for resisting a peace officer. "Verbally resisting or arguing with a police officer about the validity of an arrest or other police action" is not proscribed by 31-1. If the defendant does not commit a physical act which prevents the officer from performing his duties, his conduct does not fall under 31-1. In cases were the defendant was merely arguing with an officer but did nothing to physically prevent the officer from doing his job, it is therefore important for defense counsel to ensure that the jury instruction on 31-1 contains language requiring that the defendant committed a physical act of impediment.

Can a Kidnapping Victim be "Secretly Confined" in Public?

In People v. Gonzalez, No. 108778, slip op. (January 21, 2011), a mother, father, and their infant were sitting in a crowded doctor's office with about one hundred other patients when they were approached by a woman whom they recognized from their neighborhood. Id. at 2. The neighbor (defendant) inquired about the infant and told the parents that she was also pregnant. Id. Soon after, the parents' doctor's appointment was finished, and the parents and infant returned to the waiting room to fill out paper work, where they again saw defendant. Id. The defendant offered to hold the child while the mother left the waiting room to talk on her cell phone and the father filled out paperwork. Id. After the father had completed the paperwork, he turned around to find the defendant and the infant gone, and a search by the parents and police for the infant ensued. Gonzalez, No. 108778, slip op. at 2-3.

Fifteen minutes after the baby went missing, officers received a dispatch that a suspect had been apprehended at a hospital two blocks away. Id. at 3. The woman had been discovered by a security guard in a restricted area of the hospital, holding a baby and acting nervous. Id. The defendant's husband testified that the defendant, who had been repeatedly telling him that she was pregnant, had phoned him to tell him that she had just given birth at the hospital. Id. at 3-4. Defendant was arrested for kidnapping shortly after the call was made. See id.

The defendant was charged with unlawful restraint and two counts of aggravated kidnapping, "one count based on secret confinement and the other based on the threat or use of force." Id. at 1. The kidnapping charged based on secret confinement alleged that "defendant knowingly and secretly confined the victim, R.O., a child under the age of 13 years, against her will." Gonzalez, No. 108778, slip op. at 1-2 (citing 720 ILCS 5/10-2(a)(2) (West 2006)). Following the presentation of the State's case, the "trial court granted the motion on the count based on threat or use of force but denied it on the count based on secret confinement." Id. at 4. The jury found defendant guilty but mentally ill on the aggravated kidnapping based on secret confinement and on the one count of unlawful restraint, and defendant was sentenced to prison. Id. at 5.

On appeal, defendant argued, and the appellate court agreed, that the infant was not "secretly confined" under the statute because "the baby was in constant public view or awareness." Id. The state appealed to the Illinois Supreme Court, arguing that "defendant secretly confined the baby when she removed the baby from the hospital without the parents' knowledge or consent and kept the baby in a location unknown to her parents." Id. The issue on appeal, then, was whether "defendant's actions isolated the baby from the public even though the defendant kept the baby in public view." See Gonzalez, No. 108778, slip op. at 7. The Supreme Court held that the defendant's actions did isolate the baby from the public because "The baby was unable to escape, cry out, or call attention to her plight. The evidence also suggested that defendant took the baby without the parents' permission or knowledge and sought to pass the baby off as her own, unbeknownst to anyone who saw defendant." Id. 7.

Typically, most people think of kidnapping as resembling something like the events of the Elizabeth Smart case, where the young child was abducted from her bedroom and held captive in a remote tent camp. Most jurors would find that a remote tent camp would certainly qualify as a "secret confinement." And this would be consistent with the court's decision in this case, which acknowledges that "[c]onfinement includes, but is not limited to, enclosure within something, most commonly a structure or automobile," Id. at 7 (quoting People v. Siquenza-Brito, 235 Ill. 2d 213, 227 (2009)). But, as the Gonzalez court notes, even though "a victim's confinement may often occur within a physical structure, there is no requirement, statutory or otherwise, that the victim must be held inside a physical structure." Id. at 8. Therefore, the Gonzalez decision requires the trier of fact to focus not so much on the type of physical place where the child was held but rather the manner in which the defendant isolated the child from the public.

Part Time Associate Sought in Crystal Lake

The Rozovics Law Firm, LLC is seeking a part time associate for its Crystal Lake office. Michelle Rozovics posted the following email to the ISBA email list this morning:

I am looking to hire a part time associate attorney to work in my Crystal Lake, Illinois office 2 days per week, Mondays and Wednesdays, 8am – 5pm. Must be admitted to practice in Illinois. Admission to the Northern District of Illinois is appreciated, but not required. My firm is a boutique law firm that primarily focuses on business transactions and litigation, with a significant portion of clients doing business nationally and/or internationally.

The associate will initially handle the firm’s non-business legal matters (foreclosure defense, small personal injury cases, general civil litigation), collections for small business clients and minor contracts or corporate matters. As you progress (in my mind and yours), I may give you more responsibility. I may also ask you to conduct business development activities on behalf of the firm.

The highest sense of ethics, a sense of humor, an ability to follow directions and a simultaneous ability to think independently are key considerations in my hiring decision. Relations with clients are paramount, so you need a good personality: professional, yet personable and down to earth. I am a phenomenal mentor (my mentors taught me well enough to know to give back), but I can’t stand adults who act like whiny babies.

Salary commensurate with experience. Profit sharing will be available for business associate brings into the firm. No employee benefits are available at this time. I welcome applications from pretty much anyone, but this part time arrangement may work very well for persons who are operating their own firm or business and/or part-time parents reentering the workforce and/or newly admitted attorneys who have not yet developed bad work habits. However, the work days and times are non-negotiable. I expect to have your full attention when you are here.

Do not contact me if your desire is to work in my downtown office or from home. It will show me that you cannot read or follow instructions. Read my website’s philosophy page before you apply. http://www.rozovicslaw.com/sub/firm-philosophy.html If you find any of it strange or inapplicable to the way you work, do not apply.

Is a Defendant Required to Submit a DNA Sample When One is Already on File?

In Illinois, "any person convicted or found guilty of any offense classified as a felony under Illinois law must submit specimens of blood, saliva, or tissue to the Illinois Department of Police for DAN analysis and pay an analysis fee of $200." People v. Rigsby, No. 1-09-1461, slip op. at 1 (1st Dist. December 3, 2010) (citing 730 ILCS 5/5-4-3(a)(j)). In Rigsby, the defendant was found guilty of possession of a controlled substance with intent to deliver, and he was sentenced as a Class X offender. Id. The Court required him to submit a DNA sample and pay the $200 DNA fee pursuant to 5/5-4-3(a)(j). Id. The question raised on appeal was whether the defendant, who had already submitted a DNA sample following a prior felony conviction, had to submit another sample after his most recent conviction. See id. at 2. The Rigsby court held that he did not. Id.

The court noted that the statute is silent on whether a defendant who "has already complied with the statutory requirements and has samples of his DNA on file in the police database" must again submit those samples after another felony conviction. Rigsby, No. 1-09-1461, slip op. at 2. The court therefore looked to 20 Ill. Adm. Code §§1285.30(c)(1)--(c)(6), the section of the Code which implements 5/5-4-3(a)(j), for guidance on whether multiple DNA submissions was required. See id. at 3. These sections of the Code all contained the language "[i]f the qualifying offender has previously had a sample collected," which the court interpreted as evidence that agencies "charged with administering the statute would not interpret it to require submission of multiple and duplicative DNA samples from an offender who has already submitted samples pursuant to a prior conviction." See id. at 4 (internal citations omitted). The court earlier noted that "One of the purposes behind the statute is to create a database of the genetic identities of recidivist criminal offenders." Id. at 1-2. (citing People v. Burdine, 839 N.E.2d 573 (2005)). Drawing on the language from §§1285.30(c)(1)--(c)(6), the Rigsby court held that "A one-time submission into the police DNA database is sufficient to satisfy the purpose of the statute in creating a database of genetic identities of recidivist criminal offenders, because once an offender's DNA data is stored in the database, it remans there unless and until the offender's convictions is reversed…" Id. at 5.

The Rigsby decision is significant because 5/5-4-3(a)(j) requires all felons to submit to the DNA testing, which affects a great percentage of defendants. Moreover, many of these convicted felons are recidivists. Therefore, after Rigsby, a prudent defense lawyer would assess whether his client had submitted a DNA sample prior to the most recent conviction before allowing the court to order the defendant to submit to a duplicative DNA analysis and pay the fee that accompanies it.

When Bullets Don't Always Lead to Guns: Analysis of People v. Colyar

The First District's recent decision in People v. Colyar, No. 1-09-0323, slip op. (January 7, 2011) calls into question whether bullets in plain view in a vehicle give police officers probable cause to search the vehicle for a gun when the officers fail to ask the driver whether he possesses a FOID card. In Colyar, police officers approached a vehicle that was blocking the entrance to a hotel parking lot. Colyar, No. 1-09-0323, slip op. at 2. The vehicle's engine was running and the defendant was inside. Id. The officers approached the driver and told him that he was blocking the entrance to the parking lot. Id. at 3. As the officer walked up to the car, he observed a "'bullet sticking up' in a plastic bag on the center console. The cartridge appeared to be a rifle round, about three inches in length." Id. at 3. The driver and other passengers were ordered out of the car and handcuffed. Id. at 3-4. The officer searched the driver-defendant and found a live round of .454 caliber ammunition in his pants pocket. Id. at 4. Another officer then searched the car and recovered five additional rounds of .454 ammunition in the plastic bag in the center console. Id. After discovering ammunition on the defendant and in the car, the officer "believed there might be a gun in the Honda." Colyar, No. 1-09-0323, slip op. at 4. An officer then searched for a gun in the car, wherein he "recovered a .454 Redwing revolver from underneath the floor mat of the front passenger floorboard." Id.

Prior to trial, the defendant filed a motion to suppress the gun and the bullets. Id. at 1. The State argued that the search which led to the discovery of the gun was constitutional because it was incident to arrest. Id. However, the trial court disagreed, granting the motion to suppress because "without an inquiry by the officers to determine whether the defendant possessed a firearm owners identification (FOID) card, the possession of bullets per se was not a crime." Id. Therefore, because possession of the bullets alone is not a crime, there were no grounds for arrest, and therefore the fruits of a search incident to this unlawful arrest would not be admissible into evidence. See Colyar, No. 1-09-0323, slip op. at 5. The State appealed the trial court's ruling granting the defendant's motion to suppress. Id. at 6.

On appeal, the Appellate Court affirmed the trial court's ruling. Id. at 17. On appeal, the State argued that "'the seizure of the bullet in plain view was constitutional where the police believed it constituted evidence of criminal activity, and its presence in the passenger compartment reasonably justified the search for a gun in the vehicle." Id. at 6. The Appellate Court disagreed with this argument, holding that suppression of the gun was proper because "more was required to justify the search of the defendant's vehicle after the officers observed a bullet in plain-view, which precipitated the officers' action." Id. at 17. Among the steps that the officers could have taken, the Court noted, were asking whether the driver had a FOID card or whether he was a convicted felon. See id. In Illinois, "the absence of a valid FOID card makes possession of ammunition 'a Class A misdemeanor' and a convicted felon cannot 'be in possession of a valid FOID card.'" Therefore, if the officers would have determined either 1) that the driver did not have a FOID card or 2) that he was a convicted felon, the officers observance of the bullets would have provided them with with the probable cause that a crime had a occurred, which would give them grounds for an arrest, which would have allowed them to search the vehicle incident to that arrest. However, the officers never made such an inquiry of the defendant, so the arrest was improper and therefore the gun was held to be inadmissible. See id. at 17-18.

What is notable about Colyar is its reasoning, which may potentially apply in cases in which drugs--not guns--are found in the vehicle, which is a much more common occurrence. Last weekend, I was indulging a guilty pleasure by watching the television show "Cops." In the episode, a driver was pulled over for running a stop sign on his way to work. As the officer walked up to the driver's car, he shined his flashlight in the back seat, where he spotted a "blunt wrapper" on the floor. After speaking with the driver about the traffic infraction, he ordered the driver out of the car and searched the car, where he found the blunt wrapper on the floor but no marijuana. He then released the driver with a warning. In his interview after the traffic stop, the officer told the interviewer that the blunt wrapper provided him with probable cause to search the car for marijuana, since blunt cigars are often used in conjunction with marijuana. However, the officer never inquired into whether the driver had used the blunt from the wrapper in conjunction with an illegal narcotic.

The search of the driver's vehicle in the "cops" episode is analogous to the search of the driver's vehicle in Colyar. In both instances, officers searched the driver's car by observing something in plain view that was not per se illegal (the bullets and the blunt wrapper). In both cases, the item in plain view could be either legal or illegal, depending on the circumstances. The bullets can be legally possessed if one has a FOID card. The bullets can be illegally possessed if one does not have a FOID card. A blunt can be legally possessed so long as it is used alone and not in conjunction with an illegal narcotic. A blunt becomes illegal drug paraphernalia when it is used in conjunction with an illegal narcotic. If the reasoning of Colyar was used in analyzing the stop in "Cops," the officer should have asked the driver whether he used the blunt, whose wrapper was on the floor of the car, in conjunction with marijuana in order to obtain whether a crime had occurred, which would give him probable cause to search to the vehicle for the marijuana used in that crime. This makes sense because some people do, in fact, smoke blunt cigars by themselves. Therefore, evidence of the blunt cigar, which is not per se illegal, should not give rise to probable cause for a search of the vehicle without further inquiry of the driver that the blunt cigar is ,or was, being used in conjunction with an illegal substance, such as marijuana.

Requests to Admit

Illinois Supreme Court Rule 216 governs requests to admit.  A new version of Rule 216 took effect on January 1, 2011.  There are two new requirements in the amended Rule 216.

First, the maximum number of requests to admit that a party may serve on another party has been limited to 30, unless the parties agree otherwise or upon court order.  If a request contains subparts, each subpart counts as a separate request.

Also, a party must (1) prepare a separate paper which contains only the requests to admit; (2) serve the paper separate from other papers; and (3) put the following warning in a prominent place on the first page in 12-point or larger boldface type: "WARNING: If you fail to serve the response required by Rule 216 within 28 days after you are served with this paper, all the facts set forth in the requests will be deemed true and all the documents described in the requests will be deemed genuine."

Requests to admit can have drastic consequences for parties that fail to answer, or answer incorrectly.  Now there are also strict requirements on the propounding party as well. 

Be sure to update any forms accordingly.  It would be a shame if the responding party blew their deadlines, but you could not get the facts admitted because you were using last year's forms.

Isn't it Time to Bring "Notice by Publication" Statutes into the Twenty-first Century?

At the beginning of every year, journalists from media outlets large and small formulate a list of predictions for the year ahead. Since the dawn of the internet, many of these journalists have forecasted a decline in circulation of traditional print media such as newspapers and magazines, often divining the inevitable extinction of their profession and the existence of their traditional print employers. See, e.g., "The Year Ahead in Media: Digital or Die" (January 4, 2011, WSJ). Since 2008, 120 print newspapers have closed their doors, including the Rocky Mountain News and the Seatlle Post-Intelligencer. The Tribune Co., which owns the Los Angeles Times and the Chicago Tribune, filed bankruptcy, and the New York Times had to mortgage its headquarters in order to meet its operating costs. Ad revenues for The New York Times, which is the third largest newspaper by circulation in the nation, saw a 4% decline in print media advertising sales for 2010, while digital media advertising sales rose 10%. This, from an iconic newspaper whose stock has dropped 62% in the last five years.

As the WSJ article illustrates, the decline in print can be viewed as a symptom of the growth of internet publishing. Simply put, more people are now getting their news online rather than in print, and if current trends are predictive of the future, the decline of traditional print media will only hasten. With traditional print media becoming less relevant and digital media becoming more relevant, it might now be time to bring our "notice by publication" statutes into the Twenty-first Century. The U.S. and Illinois Constitutions both have due process clauses. Due Process, at minimum, requires 1) notice (usually of a claim) and 2) an opportunity to be heard (in order to defend one's self against that claim). Notice is typically achieved by personally serving the defendant or, if the defendant cannot be found after a reasonable effort, noticing the defendant by publication. 735 ILCS 5/2-206(a).

Procedures for service by publication are contained in 735 ILCS 5/2-206, which states, in pertinent part, that "upon diligent inquiry his or her [defendant's] place of residence cannot be ascertained, the clerk shall cause publication to be made in some newspaper published in the county in which the action is pending." 735 ILCS 5/2-206(a). 715 ILCS 5/5 describes a "Newspaper defined for purpose of publishing notice required by law or contract." Most notable among the subsections here is 5/5(b), which requires that newspapers used for noticing by publication must be "printed through the use of one of the conventional and generally recognized printing processes such as letterpress, lithography or gravure." In other words, notice must be in print--and not digital--form.

The current notice by publication requirements set out in 735 ILCS 5/2-206(a) are impractical for several reasons. The first being that, with the advent of digital publishing, readership of print newspapers is in swift decline. And even among people who still read newspapers, very few pay attention to the "Legal Notices" section, which are densely packed with notices containing formal legal language printed in small print. Furthermore, 735 ILCS 5/2-206(a) only requires that the notice be published in a newspaper "in the county in which the action is pending." This means that the defendant is unlikely to come across the notice (assuming he reads the legal notices section) unless the defendant subscribes to every newspaper in the county, not just his local paper.

Illinois' notice by publication statute could be greatly improved by allowing plaintiffs or petitioners to provide notice by publication through online publications. Even though it is unlikely that a defendant would parse the legal notices of the online version of his local paper, the defendant could efficiently survey all the legal notices in his county by searching for his name through the website's search engine or through another search engine which indexes the newspaper's online content (after all, anyone who reads the Legal Notices section of the newspaper does the same thing--look for a recognized name--only much more inefficiently).

For relatively simple legal procedures like name changes, the notice by publication fees that print newspapers charge can amount to a considerable percentage of the total costs of the legal procedure, often surpassing the costs of the petition itself. By amending 735 ILCS 5/2-206(a) to allow digital publication, this cost would be greatly reduced, while at the same time providing defendants with a greater opportunity to be put on notice regarding the action to which they are a party. Bringing the the notice by publication statute into the digital Twenty-first Century will make it less expensive for a petitioner to commence an action and will provide a better opportunity for the defendant to be noticed, ultimately promoting the due process clause's purpose in the process.

Why a Recent Second District Decision Could Lead to More Appointments for Conflict Counsel

The recent Second District decision of In re Darius G., No. 07-JA-309, slip op. (2d Dist. December 15, 2010) could provide more work for appointed conflict counsel and guardian ad litems in 2011. In Darius, the State petitioned the court to find the child to be a neglected minor, and Attorney 1 from the Conflicts Division of the Public Defender 's office was appointed to represent the minor. Darius, No. 07-JA-309. slip op. at 2. A "shelter-care" hearing was held shortly thereafter, at which Attorney 2 from the Public Defender's office was appointed to represent the mother. Id. At the following hearing, the mother stipulated to the neglect petition, and the child, who was now being represented by Attorney 3 (another conflict counsel), was placed into the care of the DCFS. Id. What followed was a series of permanency-review hearings to monitor the steps that the mother and father were taking to regain custody of their child. Id. at 3. Throughout these hearings, Attorney 2, who had been initially appointed to represent the mother, was now appointed to represent the father, and the mother was now represented by appointed counsel Attorneys 4 and 5. Id. The State later petitioned for termination of parental rights and power to consent to a adoption. Id. There, the mother was represented by yet another attorney, Attorney 6. Darius, No. 07-JA-309, slip op. at 4. At the next substantive hearing, Attorney 6, the mother's most recent attorney, appeared on behalf of the child, not the mother (replacing Attorney 3),and Attorney 5 appeared on the mother's behalf. Id. At the discovery hearing, Attorney 5 again appeared on the behalf of the mother, but Attorney 3, who had been replaced at the last hearing by Attorney 6, now re-appeared on behalf of the child. Id. At the fitness trial, the mother was represented by Attorney 5, and the child was represented by an entirely new attorney, Attorney 7. Id. at 5. At trial, the Court ultimately found the mother to be unfit, and her parental rights were terminated. Id.

My apologies if the above fact pattern conjures images of a carnival shell game or recalls less-than-fond memories of the LSAT's logic games section. But from the original neglect petition to the final parental rights adjudication, the mother was represented by four separate attorneys, one of whom later represented the father (Attorney 2) and another of whom later represented the child (Attorney 6), who was himself represented by three separate attorneys throughout the proceedings. Though there were certainly enough personnel changes to confuse the parties, only one conflict of issue was raised on appeal--when Attorney 6, who had represented the mother, appeared on behalf of the child at the pre-trial conference. The issue before the court was whether the mother "received ineffective assistance of counsel resulting from a per se conflict of interest when, during these proceedings, the same attorney from the public defender's office appeared on her behalf at one hearing but then subsequently appeared on Darius's behalf at another hearing." Id. at 1-2.

The court held that it was a per se conflict of interest for Attorney 6 to appear on behalf of both the mother and the child in the same proceeding because Attorney 6 could have obtained information from the mother during her representation that he could have later used against her when he represented the child (i.e., he could have discovered in confidence that she was unfit and then later used at that information against the mother when he represented the child). Darius, No 07-JA-309, slip op. at 11,16. The court ruled that "while multiple attorneys from the public defender's office may substitute to represent the same client, the same attorney may not during the proceedings appear on behalf of different clients." Id. at 15-16. Further, the trial court must not "accept an appearance from an attorney who already, at some point during the proceedings, appear on behalf of another party." Id. at 16.

A parental fitness proceeding is a unique adversarial proceeding in which the State is pitted against the parent, who is provided with counsel, to decide the best interests of the child, who is also represented by counsel. In many ways the interests of all three parties are competing. Hence, the appointment of conflict counsel for the parent or child. However, the Public Defender's office often represents either side and, as we have seen here, sometimes both. This creates conflicts of interests which require the engagement of outside conflict counsel. Now that there is a concrete rule on point, courts will need to be more attentive in appointing conflict counsel in cases involving minors, which could lead to more work for conflict counsel and GALs in the near future.