People v. Cole

2017 IL 120997

104 N.E.3d 325

PEOPLE of the State of Illinois, Appellee,

v.Salimah COLE (Amy P. Campanelli, Appellant).

Docket No. 120997

Supreme Court of Illinois.

Opinion filed November 30, 2017

Michael A. Scodro and Samuel D. Block, of Mayer Brown LLP, and Charles B. Sklarsky, Clifford W. Berlow, Ramon Villalpando, Briana T. Sprick Schuster, and Nathaniel K.S. Wackman, of Jenner & Block LLP, both of Chicago, for contemnor-appellant.

Lisa Madigan, Attorney General, of Springfield, and Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Assistant State’s Attorney, of counsel), for the People.

Thomas F. Geselbracht, of DLA Piper LLP (US), of Chicago, for amicus curiae National Association for Public Defense.

Kimberly A. Jansen and Leigh C. Bonsall, of Hinshaw & Culbertson LLP, of Chicago, for amici curiae Vivien Gross, of Chicago Kent College of Law, and Steven Lubet and Robert Burns, of Northwestern Pritzker School of Law.

Carol A. Brook, Martin V. Sinclair, Jr., Sarah L. Rosenbluth, and Natalie Feigenbaum, all of Chicago, for amicus curiae National Association of Criminal Defense Lawyers.

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

¶ 1 On June 15, 2016, the circuit court of Cook County entered an order of adjudication of direct civil contempt against contemnor, Amy P. Campanelli, the Cook County public defender, and sanctioned Campanelli $250 per day until she purged herself of direct civil contempt or was otherwise discharged by due process of law. Campanelli filed a notice of appeal to the Appellate Court, First District. Campanelli also filed an emergency motion to stay the fines imposed by the trial court. The appellate court granted Campanelli's motion to stay the fines.

¶ 2 The State then filed a motion for direct appeal to this court pursuant to Illinois Supreme Court Rule 302(b) (eff. Oct. 4, 2011). On July 29, 2016, this court allowed the State's motion for direct appeal and transferred the appeal of the case from the appellate court to this court. This court also allowed the National Association of Criminal Defense Lawyers, the National Association for Public Defense, and Professors Vivian Gross, Steven Lubet, and Robert Burns to file amicus curiae briefs in support of contemnor Campanelli. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 3 BACKGROUND

¶ 4 Defendant Salimah Cole was charged in a 16–count indictment with 6 counts of first degree murder, 2 counts of armed robbery with a firearm, 5 counts of aggravated kidnapping, 1 count of aggravated arson, and 2 counts of possession of a stolen motor vehicle. The charges stemmed from the September 30, 2015, shooting, robbery, and kidnapping of La Prentis Cudjo and the robbery and kidnapping of Charles Morgan. Ashley Washington, Allen Whitehead, Zacchaeus Reed, Jr., Julian Morgan, and Brianna Sago were also charged in connection with those crimes.

¶ 5 Cole appeared in court on April 12, 2016. A Cook County assistant public defender appeared as a friend of the court, as well as to defendant Cole, and informed the court that Cole's mother had retained private counsel, who would need a continuance of a week or two. Accordingly, the trial court set the next court date for May 10, 2016.

¶ 6 At the May 10, 2016, court date, Cole informed the trial court that she was not able to afford private counsel. The trial court stated that it would appoint the public defender to represent Cole. Contemnor Amy P. Campanelli, the public defender of Cook County, then asked the court not to appoint the office of the public defender to represent Cole. Campanelli asked for leave of court to file a notice of intent to refuse appointment and to ask for appointment of counsel other than the public defender. When asked to explain her motion, Campanelli stated that she actually was refusing the appointment. Campanelli informed the court that the public defender could not represent Cole because there was a conflict of interest due to the codefendants in the case. Campanelli explained that four of Cole's five codefendants were charged with the exact same offenses as Cole. In addition, codefendants Reed and Whitehouse were also charged with intimidation of codefendant Washington, for threatening to harm Washington and her family if she worked with the police on the murder case.

¶ 7 The trial court then asked Campanelli to explain the direct conflict to the court. Campanelli clarified that there was a potential for conflict. Campanelli asserted that she did not have to wait until a conflict developed, nor could she divulge attorney-client privileged information in order to inform the court of those conflicts. After considering the matter, the trial court appointed the public defender of Cook County to represent Cole, over Campanelli's objection. Campanelli asked the court to hold her in friendly contempt and to impose a nominal sanction so that she could seek appellate review of the court's decision. The trial court took the request under advisement and asked Campanelli to put the basis for her refusal to represent Cole in writing.

¶ 8 Campanelli then filed a notice of intent to refuse appointment and to request appointment of counsel other than the public defender of Cook County. In her notice, Campanelli argued that every client has a right to be represented by conflict-free counsel and that concurrent conflicts of interest are prohibited by Rule 1.7 of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010). Campanelli noted that Rule 1.7 provided that conflicts arise whenever the interests of one client are directly adverse to the interests of another client or whenever the representation of a client is materially limited. Based upon Rule 1.7, Campanelli stated that she could not accept appointment to represent Cole when she was already representing five other codefendants. Campanelli indicated that she also had moved to withdraw from representing codefendants Whitehead, Reed Jr., Morgan, and Sago, due to concurrent conflicts with one another and with codefendant Washington.¹ Because she was bringing the conflict of interest to the court's attention at an early stage, Campanelli claimed that it was incumbent on the court to take action and alleviate the conflict by appointing private counsel.

¶ 9 In addition to citing Rule 1.7, Campanelli contended that the office of the Cook County public defender had a conflict of interest in representing Cole because the office of the Cook County public defender is a law firm as set forth in Rule 1.10 of the Illinois Rules of Professional Conduct of 2010 (eff. Jan. 1, 2010). Consequently, Campanelli refused to accept appointment to represent Cole.

¶ 10 At a hearing on May 19, 2016, the trial court found that Cole was indigent and should be represented by the office of the Cook County public defender. Campanelli again told the court that she could not represent Cole because she was in conflict due to her representation of five other codefendants in the case. Campanelli stated that, pursuant to the Illinois Rules of Professional Conduct adopted in 2010, she could not represent more than one client on a case because of the potential conflict. Campanelli also noted that the Counties Code ( 55 ILCS 5/3–4006 (West 2016) ) allows a court to appoint counsel other than the public defender if the appointment of the public defender would prejudice the defendant. The trial court pointed out that it had not made a finding that appointment of the public defender would prejudice the defendant. Campanelli conceded that the trial court had not made a finding of prejudice but stated she had given the trial court enough testimony that she would be in conflict of interest if forced to represent Cole.

¶ 11 In response to further questioning from the trial court, Campanelli stated that there were approximately 518 attorneys in the office of the Cook County public defender and that those 518 attorneys did not all share the same supervisors. With regard to the four other motions to withdraw that Campanelli had filed concerning Cole's codefendants, Campanelli acknowledged that she had four separate attorneys from different divisions in her office representing those defendants. In addition, those assistant public defenders each had a different supervisor, but those supervisors might report to the same deputy director. Campanelli conceded that she has a multiple defender division for multiple offender cases but contended that she was in conflict even in those cases.

¶ 12 The trial court then reiterated that defendant Cole was in custody without legal representation, that Cole was indigent and had a right to counsel, and that, as public defender of Cook County, Campanelli was sworn to represent an indigent defendant unless the court finds that the defendant's rights would be prejudiced. The trial court observed that it had not found Cole's rights to be prejudiced, so that Campanelli's refusal to represent Cole was contemptuous. Campanelli continued to refuse to follow the order of the court to represent Cole, repeating that she could not represent Cole due to a conflict. Campanelli denied that she was violating the Counties Code in refusing to represent Cole, arguing that in fact she would be violating the Illinois Rules of Professional Conduct of 2010 in representing Cole.

¶ 13 The trial court again stated that Campanelli was sworn to represent an indigent defendant unless the court finds that the defendant's rights would be prejudiced. The trial court did not find Cole's rights to be prejudiced and asked Campanelli to carefully consider her refusal to represent Cole. The trial court then continued the case for ruling on Campanelli's request for contempt. The trial court also appointed private counsel to represent Cole in light of Campanelli's refusal.

¶ 14 Campanelli next appeared before the court on June 15, 2016. The trial court noted that it had appointed private counsel for Cole because she was an indigent defendant without...