U.S. ex rel. Duncan v. O'Leary
| Decision Date | 22 December 1986 |
| Docket Number | No. 85-2761,85-2761 |
| Parties | UNITED STATES of America, ex rel. George DUNCAN, Petitioner-Appellee, v. Michael O'LEARY, Warden, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert Agostinelli, Office of the State Appellate Defender, Ottawa, Ill., for petitioner-appellee.
Mark L. Rotert, Asst. Atty. Gen. State of Ill., Chicago, Ill., for respondent-appellant.
Before CUMMINGS, EASTERBROOK and RIPPLE, Circuit Judges.
This case comes to us on appeal following the district court's grant of petitioner George Duncan's ("petitioner's") petition for writ of habeas corpus. For the reasons set forth below, we affirm the decision of the district court. 1
The facts as developed in state post-trial proceedings and the district court's habeas evidentiary hearing are largely as follows: Petitioner was indicted February 19, 1980, for the murder of his girlfriend, Yvette Searle. Initially, petitioner retained Thomas Penn as defense counsel, and petitioner's family paid Penn a fee of $6,000. In April 1980, the family discharged Penn, apparently because Penn insisted that petitioner plead guilty to the murder charge. Petitioner thus needed a defense attorney.
Subsequently, Chris Duncan, petitioner's brother, had occasion to be patrolling on Western Avenue when he saw Assistant State's Attorney Joseph Gibson, defense attorney Dorian LaSaine, and police officer Patricia Bonacum standing outside Gibson's residence. Duncan stopped to talk to Gibson, and LaSaine then joined the conversation. The subject of petitioner's defense and his problems in selecting an attorney arose, and LaSaine told Duncan to come see him about the matter.
LaSaine, Gibson, and Bonacum all played roles in the events that followed. During this time period Gibson was running for State's Attorney of Peoria County. LaSaine and Gibson were close friends and were classmates together in law school. LaSaine was Gibson's campaign manager for this race and continued in this role during petitioner's prosecution which was conducted by Gibson. Gibson's campaign was based upon a "strong law and order" theme, and as such LaSaine and Gibson had publicized a prior murder trial where Gibson had sought the death penalty.
Following the discussion outside Gibson's house, Duncan went to see LaSaine about representing petitioner. LaSaine requested a fee of $7,500 for the case. Petitioner's family decided that this was more than they could afford, and continued to search for an attorney. Norval Hodges was then retained by petitioner for $5,000, with only $1,000 due before the trial.
Several days after petitioner retained Hodges as defense counsel, Duncan encountered Bonacum at the Peoria police department. Bonacum brought up the subject of petitioner's defense. Bonacum told Duncan that Hodges was not an effective attorney, that he was not known at the courthouse, and that he was "old fashioned." Bonacum further told Duncan that Hodges was trying to get information from the Coroner about petitioner's case when all he had to do was look at the police reports. Bonacum knew both that Hodges was petitioner's attorney and that Hodges was at the Coroner's office as part of his work on the case because her fiance Gibson had previously given her this information. Bonacum then suggested to Duncan that he discuss petitioner's defense further with LaSaine.
Duncan then met again with LaSaine about representing petitioner. This time, LaSaine told Duncan that he would represent petitioner for less than $7,500. Petitioner's family eventually hired LaSaine for $3,500. LaSaine entered his appearance as petitioner's attorney on May 19, 1980, and the trial began May 27, 1980.
LaSaine admitted that he never told Duncan that he was Gibson's campaign manager. LaSaine was not sure whether he had informed petitioner of this fact.
On the day of trial, the court and petitioner engaged in the following colloquy:
Do you understand?
It can arise, as I say, because of a dual--not a dual representation but a dual--I want to put this in words so I am sure that you'll understand it.
(Pause.)
During the cross examination of witnesses, for example, Mr. Duncan, it might be necessary for Mr. LaSaine to attempt to show up Mr. Gibson, all right? To show up the evidence that he may be attempting to present against you at your trial. And in a very subtle or a very hidden manner, Mr. LaSaine, if this conflict of interest would affect him, could restrain himself from fully representing you by not vigorously cross examining witnesses.
You understand?
Do you understand?
On July 3, 1980, the trial court held a hearing on petitioner's motion for a new trial. Petitioner, now represented by Jerry Serritella, based his motion for a new trial on his claim that LaSaine labored under a conflict of interest that constituted ineffective assistance of counsel per se. At this hearing, in addition to most of the facts previously discussed, it was established that petitioner completed eleventh grade and has worked as a car washer. Although he can read and write, he has difficulty understanding spoken English. He was not familiar with campaign procedures, and apparently did not understand the role and function of a campaign manager. He testified subsequent to the trial that he did not know that LaSaine was Gibson's campaign manager, and that his inconsistent responses stemmed from his lack of understanding of the judge's comments. Nevertheless, the trial court determined that petitioner had effectively waived the conflict of interest issue, and denied his motion for a new trial. He was sentenced to a forty-year term of imprisonment.
The Illinois appellate court affirmed the trial court's decision that petitioner's waiver of the conflict issue was made "knowingly and intentionally." People v. Duncan, 97 Ill.App.3d 896, 899, 53 Ill.Dec. 654, 424 N.E.2d 67 (3d Dist.1981). Petitioner then filed a petition for post-conviction relief. The state circuit court denied the petition, ruling that the "issues alleged ... have been raised or could have been raised in the trial court or at the appellate stage or in fact were litigated at these stages." R. 4, Appendix C. The appellate court affirmed this decision.
On July 31, 1984, petitioner filed a petition for writ of habeas corpus in the district court. On January 17, 1985, the district court set the cause for an evidentiary hearing on the issues of whether LaSaine's representation was adversely affected by an actual conflict and whether petitioner had knowingly waived the conflict. An evidentiary hearing on the petition was held June 7, 1985.
The testimony given at this hearing generally...
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