On August 30, 2012, the Supreme Court of Illinois decided that due process and its Juvenile Court Act requires that a minor tried for a criminal offense in a delinquency proceeding should be represented by a defense counsel whose “singular loyalty is to the defense of the juvenile.”
For an adult in a criminal proceeding, obtaining a defense counsel to defend your personal wishes, which may or may not be in your “best interests,” has been a staple of our legal system. But, when a child appears before a judge in a delinquency proceeding, zealous advocacy for the child’s wishes has not been required.
In 2006, Austin M. and Ricky M. were charged with misdemeanor criminal sexual abuse of two foster children living in their home the prior year. After repeated questioning by the Chief in the police station and without his attorney present, Austin made a single line confession to these acts. Afterwards, Austin’s parents hired a defense attorney to represent him throughout the delinquency proceedings. However, even though he was hired to represent only Austin and Ricky’s wishes (and not those of the parents, the court, or even their own “best interests”), the Illinois Supreme Court determined that his defense counsel functioned under a per se conflict of interest, that is, as a hybrid defense counsel and guardian ad litem (GAL). Mainly, as a result of his “confession,” Austin was adjudicated a delinquent minor. And, as Ricky made no confession, he was later released of any charges.
Can a Defense Counsel Function as the Minor’s GAL too?
According to an Illinois Statute, for a minor in delinquency proceedings, there is no requirement that a GAL be appointed to the minor. A GAL may be appointed if the minor has no interested parent or legal guardian, if the interests of the parent(s) differ from the minor’s or the child has no interested parent or legal guardian, or if counsel believes the juvenile is unable to act in his or her own best interests. However, in section 5-170 of the same Act, when discussing a minor’s right to counsel in a delinquency proceeding, it states, “a minor may not waive the right to the assistance of counsel in his or her defense.” Further, the court found that no statutory exception existed allowing defense representation by a GAL. Therefore, the court found that the plain language of the Act was such that a minor in a delinquency proceeding has a nonwaiveable right to be represented by a defense attorney.
Additionally, the court referred to Gault, which first recognized the constitutional right to the effective assistance of counsel in delinquency proceedings. Using the statutory argument described above and the well-known constitutional reasoning in Gault, the court determined that a minor’s right to defense counsel in a delinquency proceeding must be recognized.
Once recognizing the minor’s right to a defense attorney, the court considered whether it is constitutionally and statutorily permissible for a single attorney to function as both defense counsel and GAL when representing a minor in a delinquency proceeding. The court found an inherent conflict between the professional responsibilities of a defense attorney and a GAL. Specifically, it found that the risk that counsel, as a GAL and defense attorney, would render ineffective assistance or that an actual conflict of interest will arise is substantial. As noted above, a GAL is not required in delinquency cases unless there is no interested parent or legal guardian to represent the child’s best interests. As such, the GAL acts more as a concerned parent; this can tend to be opposite the position of an effective defense counsel. For example, a GAL need not zealously pursue acquittal if he does not believe acquittal would be in the best interests of the minor or even society. Accordingly, the court concluded that a per se conflict exists when the minor’s counsel in a delinquency proceeding functions as both defense counsel and GAL simultaneously.
Was Austin’s Attorney Functioning as “Hybrid” Representation?
Once the court decided that hybrid representation of the child is unconstitutional, the court went on to decide whether Austin’s attorney functioned as a “hybrid representation” with respect to Austin’s case. It was undisputed that Austin’s attorney was his defense counsel; the issue to be decided was whether the attorney misunderstood the role of defense counsel for Austin and functioned as his “best interests/defense” counsel.
Let’s take a look at some of the moments during the delinquency hearing that the court used in determining whether the attorney functioned as a hybrid best interests/defense attorney:
1) When describing the role of Austin’s attorney to his parents, the trial court judge gave the “classic description of a guardian ad litem”:
He represents what’s in the best interest of the Minors, which may or may not be what the Minors or the parents think is in their best interest.
2) Austin’s attorney never attempted to correct the court’s description of his role in the case. Why? It seemed that even the attorney saw his role as more of a GAL than a defense counsel as well.
3) Austin’s attorney even admitted that because he was representing two defendants in this case, he was not giving Austin and Ricky the same consideration he would give adult criminal defendants:
I am representing two clients here, and ordinarily if this were an adult case – I cannot imagine – it is extremely rare I would contest a hearing attempting to represent two individual clients that deserve the benefit of individual representation, separate consideration…
4) His justification for representing both clients:
I don’t view such a proceeding as adversarial as it might be if it were an adult case. I view this as a truth-seeking process on all parts….[the parents] agree it is in the best interest and beneficial to everybody that I continue to represent both.
Defense attorneys often state that they are seeking “the truth,” however, usually, the implication is typically that “the truth” refers to the defendants’ innocence.
5) Further discussion of the truth seeking process by the attorney included:
…and if such acts happened, then it needs to stop. An intervention is not inappropriate by way of government to help these boys if such things happened.
6) By allowing the State to present videotaped statements of the alleged victims in lieu of live courtroom testimony, Austin’s attorney knowingly gave up his right to cross-examine them in court.
7) Unfortunately, Austin’s attorney never attempted to suppress the one piece of evidence upon which the court found its basis for guilt:
Austin’s alleged statement to the police that he did it.
Even with testimony that indicated that Austin only confessed after aggressive question in the police station, his attorney never argued that the statement was involuntary. In (slight) defense of Austin’s attorney, he did so because the State agreed to give Austin probation, at most, if adjudicated as a delinquent.
8) His attorney never attempted to show that Austin had learning disabilities and diminished mental capabilities. This information only came out in sentencing and might have shown that Austin could have been even more vulnerable to the vigorous questioning at the police station.
The Illinois Supreme Court reversed Austin’s adjudication of delinquency because it determined that “the legal representation Austin received at his delinquency trial was not the type of counsel guaranteed by Due Process and its Juvenile Court Act. Moreover, Austin’s attorney operated under a per se conflict of interest because he functioned more as a GAL than as Austin’s defense counsel.
With one court in Illinois making tremendous strides for children’s rights, one has to wonder? Was it the right time? Was the court reaching too far? How many states are going to follow suit? What do you think?