People v. Ford

• Decision Date: 23 October 2006
• Docket Number: No. 1-04-1939.,1-04-1939.
• Citation: 857 N.E.2d 900
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James FORD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

857 N.E.2d 900

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James FORD, Defendant-Appellant.

No. 1-04-1939.

Appellate Court of Illinois, First District, First Division.

October 23, 2006.

Rehearing Denied November 29, 2006.

Michael J. Pelletier, Deputy Defender, and Manuel S. Serritos, Assistant Appellate

Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (James F. Fitzgerald, Michele Grimaldi Stein and Miles J. Keleher, Assistant State's Attorneys, of counsel), for Appellee.

Justice CAHILL delivered the opinion of the court:

We review the denial of a petition for postconviction relief in an appeal with a few expected and a few unexpected arguments. Expected is a claim of ineffective assistance of trial counsel. Unexpected is an admission by distinguished trial counsel that he was, in fact, ineffective. Unexpected as well is a group of lawyers who testified that trial counsel was suffering from emotional fatigue as a result of an earlier trial, which may have contributed to his ineffectiveness. So we have a new wrinkle in the expanding web of ineffective assistance claims: missteps brought about by the stress of the job. The trial judge in response to this chorus of claimed ineffectiveness, and after a traversal of the trial record, found that trial counsel turned in a "stellar performance." Our review of the record leads us to concur with the trial judge. Trial counsel has been much too hard on himself. We affirm.

On appeal, defendant claims the evidence at the postconviction hearing showed that his constitutional rights were violated; first, because the trial judge forced his trial to begin without adequate preparation by his attorney, and second, because his trial and appellate attorneys rendered ineffective assistance.

Defendant was charged with the murder and armed robbery on a subway of Joseph Ardell on October 24, 1979. Randolph Stone was appointed to represent defendant. Stone filed his appearance and began filing motions on defendant's behalf in November 1979. On January 3, 1980, Gerson Kaplan, a staff psychiatrist for Cook County, examined defendant, found him fit to stand trial and determined he was "legally sane" at the time of the alleged offenses. On June 27, 1980, the trial judge set defendant's trial for August 18, 1980. Because of attorney Stone's involvement in the Pontiac prison riot case, a capital murder case, defendant's trial was delayed. Judge Cousins, the trial judge, set a new trial date of July 13, 1981, and advised Stone that if the Pontiac case ended earlier, defendant's trial would be advanced. The Pontiac trial ended on May 8, 1981. On May 15, 1981, Stone received notice that the State had asked to advance defendant's trial date to May 26, 1981. Stone moved for a continuance, arguing that he was not adequately prepared for trial. Judge Cousins denied the motion and jury selection began on May 28, 1981.

The details of the trial and the evidence presented appear in this court's opinion, People v. Ford, 118 Ill.App.3d 59, 60, 73 Ill.Dec. 846, 454 N.E.2d 1095 (1983). We will recount only those portions of the trial record that apply to this appeal.

Defendant presented two witnesses at trial. Dr. Bobby Wright, a psychologist qualified as an expert witness, testified that defendant suffered from chronic alcoholism. He said that in his "professional opinion there [was] reasonable doubt as to whether [defendant] possess[ed] substantial capacity to appreciate the criminality of his conduct or to conform his behavior to the requirements of the law." Dr. Wright testified on cross-examination that he first examined defendant on May 29 and 30, 1981, after jury selection for defendant's trial had started. Geraldine Galvin testified that she had a 10-year relationship with defendant, who was the father of her child. She said he became loud and violent and "just out of hand" when he drank. She said that after drinking, he would not remember what had happened.

Defendant was convicted and sentenced to life imprisonment for first degree murder with a concurrent 60-year term for armed robbery.

Defendant appealed. Appellate counsel (not Stone) raised two issues: (1) that the trial court erred in failing to instruct the jury that a verdict of not guilty by reason of insanity could subject defendant to involuntary commitment; and (2) the trial court erred in denying his motion for a mistrial despite prosecutorial misconduct. Ford, 118 Ill.App.3d at 60, 73 Ill.Dec. 846, 454 N.E.2d 1095. We note in passing that appellate counsel on direct appeal found nothing in Mr. Stone's performance to warrant an ineffective assistance of counsel claim. The appellate court affirmed defendant's convictions and sentences. Ford, 118 Ill.App.3d at 60, 73 Ill.Dec. 846, 454 N.E.2d 1095.

In November 1990, defendant filed a pro se petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 (West 1996)). In 1995, the State filed a motion to dismiss. Appointed counsel from the Cook County Public Defender's office filed a supplemental petition in February 2001. Defendant claimed to have suffered violations of his constitutional rights when: (1) the trial court denied his request for a continuance; (2) trial counsel failed to arrange psychological and psychiatric examinations before jury selection; (3) the prosecutor excluded minority jurors; (4) the prosecutor made improper opening and closing remarks; (5) counsel failed to represent him at sentencing; (6) appellate counsel was ineffective for failing to raise meritorious issues; and (7) his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

Attached to the petition was the affidavit of Stone. Stone averred that he knew defendant's sanity was a key issue in the trial, but he, Stone, failed to arrange for an adequate psychological and psychiatric examination before the trial began. Stone said he had wanted to have defendant tested by Dr. Carl Mellinger, a psychiatrist, but Dr. Mellinger was unavailable. This error, he claimed, destroyed any possibility of an insanity finding. Stone claimed that both he and the trial judge erred in failing to obtain a fitness hearing when evidence emerged at trial that defendant had received psychotropic medications while in jail. Stone said that he had not been prepared for sentencing and he believed defendant would have received a lighter sentence if he, Stone, had been better prepared.

The State filed a motion to dismiss the postconviction petition. The court denied the State's motion and ordered an evidentiary hearing. It was held on November 25, 2003, and February 26, 2004.

Stone, then a clinical professor of law at the University of Chicago Law School, testified that he was appointed as counsel for defendant in 1979. But by late 1979 and for all of 1980, he was involved in the Pontiac case. He said the Pontiac case left him "physically and emotionally exhausted." He said the advancement of defendant's trial left him inadequately prepared. He said he arranged for Dr. Bobby Wright, a psychologist, to examine defendant while jury selection was underway, but Wright did not have enough time to evaluate defendant and to prepare for trial. Stone said he tried to arrange an examination with a psychiatrist, Dr. Mellinger, but was unable to do so. Stone said he believed that if he had secured the testimony of both Dr. Wright and Dr. Mellinger, the jury could have found defendant not guilty by reason of insanity.

On cross-examination, Stone admitted that when he sought a continuance, defendant's case was one of the older cases on the judge's docket. He admitted that before the Pontiac trial and even before his official appointment as defendant's attorney, he worked on defendant's case by meeting with defendant and filing several motions. Stone acknowledged that defendant was examined by Dr. Kaplan, a psychiatrist, on January 3, 1980, and found fit to stand trial.

David Thomas, a clinical professor at Chicago-Kent College of Law, testified that he represented defendants in the Pontiac case, a multiple-defendant, multiple-murder prosecution, from November 1980 until May 1981. He said when the trial ended, Stone was physically and emotionally exhausted and "completely washed out." Thomas admitted on cross-examination he was not involved in defendant's trial and did not read the transcript. Stanley L. Hill testified that he was an attorney on the Pontiac case. He said the case was "all consuming" and Stone was involved in all phases. He said he believed certain aspects of Stone's performance at defendant's trial should have been raised by appellate counsel. He admitted on cross-examination he had no knowledge of defendant's case. Thomas Breen, a prosecutor in the Pontiac trial, testified that the trial was one of the most complicated he had ever seen. Breen said Stone actively participated in the pretrial motions, jury selection and trial. Breen admitted on cross-examination he had no knowledge of defendant's case. Attorney Michael Deutsch testified that he saw Stone on the day the Pontiac trial ended and Stone looked very tired and "basically just wasted" from the trial. Deutsch admitted he had no personal knowledge of defendant's trial.

The parties stipulated to the testimony of Judge Leo Holt, a defense attorney in the Pontiac case. If called as a witness Judge Holt would have testified that Stone actively participated in the Pontiac case and the trial was a "horrendous experience." The defense also presented an affidavit from Judge Marianne Jackson, another defense attorney in the Pontiac trial. Judge Jackson said she saw Stone on May 9, 1981, and he looked "emotionally, physically and mentally drained." She said she "would not have been able to start picking a jury in a capital trial on May 27, 1981."

The State presented no witnesses. On June 14, 2004, the trial court denied d...