¶1specially concurring in part and dissenting in part:
¶2I agree with all but one part of the majority’s decision.
¶31. Ineffective Assistance of Counsel
¶4I concur with the analysis of defendant’s claim of ineffective assistance of counsel based on the Illinois Constitution, but write separately to indicate my belief that the assistance was also ineffective based on the fifth amendment to the United States Constitution.
¶5The majority notes that defendant’s fifth amendment right to counsel does not include the same guarantee of effective or competent assistance contained in the sixth amendment, because the former protects defendant only from a coerced confession. I do not deny that the general consensus of the cases is supportive of that conclusion. I do not, however, believe that the conclusion adequately addresses the challenge raised by defendant because it relates only to the boundaries of the attorney’s functions under the two amendments.
¶6When a person who has been given Miranda warnings but has not yet been charged asks for legal representation, inherent in that request is an expectation that the attorney will be competent to render advice consistent with defendant’s best interest and untainted by any competing or conflicting interests. This expectation is reasonable and is fully justified by the attorney’s ethical obligation, imposed in all 50 states, not to undertake representation when a conflict exists. It is my understanding that an attorney has the ethical duty, regardless of the nature or parameters of the representation, to advise anyone who is relying on his/her skill or judgment that there is an actual or potential conflict of interest. With specific regard to this case, I do not believe that that obligation, or the corresponding right of the defendant to rely on it, is dependent on whether representation was undertaken pursuant to the fifth or sixth amendment to the United States Constitution.
¶7For this reason, I would find that counsel’s failure to advise defendant of his relationship with the victim and her to decide whether or not to waive any conflict and put her fate in his hands was a violation of the United States Constitution’s fifth amendment as well as of the Illinois Constitution.
¶82. Brady Violation
¶9The majority finds that the failure of the State to disclose the laboratory report confirming the lab’s inability to analyze the water found with the victim was a discovery violation pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). But, it says, the violation is harmless because even if the report had been divulged, there was no reasonable probability that it would have affected the outcome of the trial. I cannot agree with that conclusion and, therefore, dissent from it.
¶10The State’s case against this defendant was purely circumstantial. Success in prosecuting her was dependant on the State being able to put together enough evidentiary pieces, none of which was dispositive standing alone, that cumulatively made a case for defendant’s guilt.
¶11To this end, and knowing that there was no way of tying any water to this defendant, the State produced three witnesses in an apparent attempt to associate defendant with Danny Edwards and the two of them with the purchase of bottled water of some kind. As is shown in the majority opinion, not one of the three provided any evidence that defendant, either alone or in concert with Edwards, had purchased any water of any kind.
¶12The majority acknowledges that the testimony had “extremely low probative value.” 336 Ill. App. 3d at 888. In point of fact, it had no probative value at all — a fact which leaves me wondering why the witnesses were produced at all if not to bolster the State’s case by innuendo, and why the State has battled in the circuit court and before this court to keep the evidence in. I have to wonder if the jury, too, strove, possibly successfully, to find some significance in this testimony which, although admittedly without legal probity, had acquired some worth or utility simply by virtue of having been presented. For that reason, I cannot agree with the majority that the failure to provide the defense with a way to keep that testimony out is immaterial.
¶13I believe the Brady violation was material and I would reverse the dismissal of counts IX and X of the postconviction petition and require a hearing on this issue on remand.
¶14specially concurring in part and dissenting in part:
¶15I concur in the majority’s opinion except for its treatment of counts I and IV of Rish’s postconviction petition. I would affirm the circuit court’s dismissal of those counts.
¶16Count I: Ineffective Assistance of Counsel
¶17I agree that during precharge custodial interrogation a person can invoke article I, sections 2 (due process) and 10 (right against self incrimination), of the Illinois Constitution to secure the presence of an attorney. Ill. Const. 1970, art. I, §§ 2, 10; see also People v. McCauley, 163 Ill. 2d 414 (1994). I also have no objection to adopting the standard prescribed in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), for judging such an attorney’s performance. In applying that standard, however, we must account for the necessities of context.
¶18The strictures of representation at the precharge stage are considerably lower than those at the prosecution stage (where the Strickland standard originated). This principle flows naturally from the fact that jeopardy has not attached during precharge proceedings. Thus counsel’s role is limited to protecting the suspect’s right against self incrimination. As the United States Supreme Court has noted in the fifth amendment context, the purpose of requiring counsel is to preserve Miranda rights, not to vindicate the sixth amendment right to the assistance of counsel. See United States v. Gouveia, 467 U.S. 180, 188 n.5, 81 L. Ed. 2d 146, 154 n.5, 104 S. Ct. 2292, 2297 n.5. (1984). I believe this observation applies equally under the Illinois Constitution. In fact, the sixth amendment’s counterpart in the Illinois Constitution carries the heading, “Rights after Indictment.” (Emphasis added.) Ill. Const. 1970, art. I, § 8.
¶19With this understanding of precharge counsel’s role, the inquiry under the first prong of Strickland is whether counsel provided objectively reasonable protection of the suspect’s right against self-incrimination. In the instant case, the record contains considerable evidence that attorney Swaim met this requirement. He explicitly informed Kish that she had a constitutional right to remain silent. When Kish chose to continue speaking with the police, Swaim informed her that she could terminate the discussions at any time. He also advised that he would remain in the room in case “anything got to be a problem.” He subsequently accompanied Kish during 35 hours of interrogation — periodically stopping the questions and asking the police to leave the room so he could discuss certain matters with her.
¶20Swaim testified that he did not observe any coercion or mistreatment of Kish by the police. Based on the information Kish gave him about her knowledge of the crime, Swaim did not see a problem with her cooperation in the investigation. During the interrogation, Swaim called State’s Attorney William Herzog on the telephone twice to assert Kish’s innocence. When Herzog advised that Kish could not go home, Swaim became furious and threatened to sue the State on her behalf.
¶21Kish does not dispute these facts; rather, she speculates about Swaim’s loyalty because of his acquaintance with the victim and a police officer. But the facts illustrate that Swaim fulfilled his limited precharge responsibilities in an objectively reasonable manner. Thus, Kish cannot carry her burden under the first prong of Strickland, and the circuit court properly dismissed count one of her postconviction petition.
¶22Count IV: Prosecutorial Misconduct
¶23Our supreme court has aptly observed that “[i]f … the knowledge of every State employee who is involved in a criminal case is imputed to the prosecution, the control over criminal cases would be placed in the hands, and at the mercy, of every employee who touches the case.” People v. Robinson, 157 Ill. 2d 68, 80 (1993). Accordingly, imputation depends on factors like reasonableness, whether the failure to transmit knowledge up the informational chain was inadvertent or intentional, and whether real prejudice occurred. Robinson, 157 Ill. 2d 68.
¶24The evidence indicates that Officer Willis did not intend to conceal his “electric chair” comment to Kish; after all, he repeated the comment to millions of people on national television. Furthermore, I do not believe Kish suffered real prejudice as a result of the comment. Even if the jury believed she told the truth about Detective Erickson threatening her with the electric chair, the State still presented compelling circumstantial evidence of her guilt. For instance, she was involved in purchasing materials to construct the burial box, purchasing the water left inside the box with the victim, and casing the victim’s house. Additionally, her fingerprints were discovered on a tape recorder used during one of the ransom calls. Such facts support a reasonable inference that Rish gave inconsistent statements because she wanted to conceal her guilt, not because she was frightened by a single comment about the electric chair.
¶25Under these circumstances, it would be unreasonable to impute Willis’s knowledge about the “electric chair” comment to the prosecution. The court properly dismissed count IV of Rish’s postconviction petition.
¶26For the foregoing reasons, I respectfully dissent from those portions of the majority’s opinion dealing with counts I and IV