Supreme Court Summaries

Opinions filed March 18, 2010

Nos. 107003, 107112 cons.    In re Denzel W.

                                                People v. Kenneth Smith

Appellate citation:     In re Denzel W., No. 1-05-3374 (unpublished order under Supreme Court Rule 23).

                                  Smith, 384 Ill. App. 3d 489.

      JUSTICE GARMAN delivered the judgment of the court, with opinion.

      Chief Justice Fitzgerald and Justices Thomas, Kilbride and Karmeier concurred in the judgment and opinion.

      Justice Freeman dissented, with opinion, joined by Justice Burke.

      This consolidated appeal comes from Cook County. Under Supreme Court Rule 711, a senior law student or recent law graduate is allowed to perform legal services under the supervision of a member of the bar if certain conditions are met. One of those conditions is the written consent of the client. As to criminal charges that may result in imprisonment, the supervisor must be present during all trial proceedings.

      In these cases, written consent of the client was not obtained and denial of the right to counsel was raised as an issue on appeal. In this decision, the Illinois Supreme Court held that failure to obtain the required written consent is not a per se denial of counsel, but is one factor to be looked at in determining whether the right to counsel has been denied.

      Denzel W., a juvenile, was adjudicated delinquent for a 2005 aggravated battery. Bench proceedings took place in which an assistant public defender was assisted by a law student who, in his presence, performed some direct and redirect examinations. The appellate court reversed the adjudication for lack of the required consent and ordered a new trial. In this decision, the supreme court reversed that result and remanded the cause to the appellate court for it to examine all the juvenile’s claims (not previously addressed) and consider what occurred at trial in determining whether to affirm or reverse.

      Kenneth Smith was the subject of charges involving heroin. Ultimately, after jury proceedings, he was convicted for the 2005 possession of a controlled substance within 1,000 feet of a school. An intern for whom written consent had not been given assisted the assistant public defender on the motion to suppress, and, in his presence, took direct testimony from the defendant and argued the motion. It was denied, and the intern did not participate at the trial. The appellate court affirmed the conviction, finding that the role of the intern was minimal. The supreme court rejected the defendant’s sole argument on appeal that failure to obtain written consent was a per se violation of the constitutional right to counsel, and it affirmed the appellate court.