¶1specially concurring:
¶2I concur in all aspects of the majority opinion. I write to elaborate on the following comment about the competency of those attorneys who move for a directed verdict that results in the cure of an otherwise fatally flawed prosecution:
“We understand defendant’s assertion that no competent defense attorney would ever move for a directed verdict if he knew that the State would then be allowed to reopen its case to present further evidence to cure the precise deficiency pointed out in the motion for directed verdict. Nevertheless, a criminal trial is not a game to win or lose, but a search for truth and justice. [Citation.] Every effort should be made to achieve justice, whether that results in the conviction or the acquittal of the defendant.” 331 Ill. App. 3d at 202.
¶3While I can readily agree with the noble pursuit of truth and justice, this passage seems to imply that an ill-timed challenge to a fatally flawed case, which results in repair after the defect is exposed, might not constitute the ineffective assistance of counsel because it serves an overriding effort to achieve justice. I trust that this implication is not intended.
¶4While a criminal trial is hardly a mere game, it proceeds under certain rules to an ultimate outcome that may belie truth and mock justice. Trials are all about winning and losing, and a criminal defense lawyer who blows the opportunity to obtain an undeserved victory for his client, even if the blunder serves a greater good by producing a deserved conviction, has provided constitutionally deficient representation.
¶5The defendant does not raise an ineffective-assistance-of-counsel claim in this case. However, what happened here raises an interesting question. Is it tactically sound to voice a request for a directed verdict at the close of the State’s case when the trial judge possesses the ability to permit additional evidence to cure the defect upon which the directed verdict motion is made? Reasonably effective criminal defense lawyers should know that trial judges are guided by the platitudes set forth by my colleagues — that “a criminal trial is not a game to win or lose, but a search for the truth” in which “[e]very effort should be made to achieve justice, whether that results in the conviction or the acquittal of the defendant.” 331 Ill. App. 3d at 202. They should know that most judges will prefer truth and justice to prevail over a technical omission in proof on the State’s part. Ergo, sound legal strategy would seem to commend restraint in raising any challenge over a failure to identify the defendant, until after the jury is discharged and the trial judge no longer possesses the power to assist the prosecution in mending the error of its ways. While some might call such a tactic gamesmanship, timing the revelation of a deficiency in the State’s proofs so that it cannot be corrected would be decidedly reasonable strategy. After all, it wins the case.
¶6But for defense counsel’s motion, which brought to light the failure to prove identity, identity would never have been proven. A reasonable probability exists that the outcome of this appeal would be different. The defendant would have to prevail on his challenge to the legal sufficiency of the evidence because Thompson, the witness called after the State was permitted to reopen its case, was the only witness to place the defendant at the scene of the accident. Until the State called him, it had not established that this defendant was anywhere near the scene of the crime.
¶7Where the State has failed to present evidence to establish a necessary element of its case, like having the defendant identified, defense counsel possesses the absolute ability to champion his client’s acquittal. What professional blunder could be worse than a directed verdict motion that telegraphs the proof’s deficiency and results in a trial judge’s grant of the right to present additional evidence to cure it? It seems to me that this defendant suffers a conviction that the evidence would not have supported absent the enlightenment provided by the defendant’s attorney. Nonetheless, I concur in the majority opinion.