Illinois Official Reports 

Appellate Court

People v. Buckhanan, 2016 IL App (1st) 131097

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

BRYANT BUCKHANAN, Defendant-Appellant.

District & No. First District, Second Division

Docket No. 1-13-1097

Filed September 27, 2016

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 08-CR-3237; the 

Hon. Dennis J. Porter, Judge, presiding.

Judgment Reversed and remanded.

Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Michael H. Orenstein, all 

of State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, 

John E. Nowak, Janet C. Mahoney, and Brian A. Levitsky, Assistant 

State’s Attorneys, of counsel), for the People.

Panel JUSTICE MASON delivered the judgment of the court, with opinion.

Justices Lavin and Pucinski concurred in the judgment and opinion.
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 OPINION 

¶ 1 For six years prior to 2009, Samuel E. Adam, Jr. (Junior) had represented defendant Bryant 

Buckhanan on a number of criminal matters. On January 11, 2008, the State filed a complaint 

(later superseded by indictment) charging Buckhanan with the August 19, 2007, murder of 

Omari Houston. On the same date the complaint was filed, Junior filed an appearance on 

Buckhanan’s behalf.

¶ 2 More than a year and a half later, the State sought to disqualify Junior from representing 

Buckhanan on the ground that Junior’s father, Samuel F. Adam, Sr. (Senior), represented 

Gabrielle Gambrell, Buckhanan’s girlfriend and a witness the State planned to call at trial. The 

conflict identified by the State in its motion was the possibility that if Gambrell’s trial 

testimony varied from a statement she made to the police in September 2007, the State would 

call Senior—who was present for the statement—to impeach his client. Notwithstanding the 

fact that (i) there were other witnesses to Gambrell’s statement, namely, a police detective and 

an assistant State’s Attorney, thus clearly rendering Senior’s testimony unnecessary and (ii) 

the State identified no material variance between Gambrell’s statement and her grand jury 

testimony, the trial court ordered a hearing on the State’s motion.

¶ 3 After the hearing, during which Senior testified that he did not recall Gambrell making one 

of the statements attributed to her in the summary of her statement to the police (so that he 

would, therefore, not impeach Gambrell on that point), the State changed tack and argued that 

Junior would be obligated to call his father as a witness in Buckhanan’s defense (presumably to 

attest to his lack of recall of a portion of Gambrell’s statement) or be deemed ineffective for 

failing to do so. Without articulating any actual or potential “conflict” inherent in this new 

scenario, the State argued that the possibility of Junior calling Senior as a witness created the 

appearance of impropriety justifying Junior’s disqualification.

¶ 4 The trial court agreed and granted the State’s motion. In the course of its ruling, the trial 

court specifically found that there was no unethical exchange of confidential information 

between Senior and Junior. 

¶ 5 We reverse the disqualification of Buckhanan’s counsel and remand for a new trial. 

Nothing in the State’s theory of disqualification, either as originally articulated or as revised 

after the hearing, warranted depriving Buckhanan of his chosen counsel. And although the 

State’s evidence was more than sufficient to sustain Buckhanan’s conviction, the error in 

disqualifying his attorney, standing alone, mandates reversal of the circuit court’s judgment 

and remand for a new trial. 

¶ 6 BACKGROUND 

¶ 7 Almost immediately after Houston’s murder, police focused on Buckhanan given that 

several witnesses implicated him in the murder and identified him in a photo array. 

Buckhanan’s loaner car from an automobile dealership—also identified by several witnesses 

as being present at the scene of the murder—was found in a ditch the day after the murder with 

papers identifying Buckhanan and the keys still in the ignition. 

¶ 8 The police had several addresses where they searched for Buckhanan after the murder, 

including an apartment in Woodridge where he resided with Gambrell and their infant child. 

After Gambrell felt the police were harassing her, she eventually contacted Senior in 
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September 2007, and he agreed to represent her. Gambrell did not witness the shooting; rather, 

the State intended to call her to establish Buckhanan’s flight the day after the murder. 

Gambrell’s anticipated testimony was based on a statement she gave to police on September 

12, 2007, and testimony she gave before a grand jury on February 5, 2008, after Buckhanan’s 

arrest. 

¶ 9 In her 2007 statement to police, which police later summarized, Gambrell stated that on the 

morning after the shooting, she received a phone call from Buckhanan informing her that 

someone had run his car into a ditch on I-88. Gambrell, who was not at home when she 

received Buckhanan’s call, returned to the apartment and, on the way, drove down I-88 and 

determined that Buckhanan’s car was no longer in the ditch. She then met Buckhanan briefly at 

their apartment. According to the summary, Buckhanan informed Gambrell that he had called 

the Illinois State Police about the loaner vehicle, and they told him to contact homicide 

detectives. A short time later, Buckhanan left without telling Gambrell where he was going. 

Gambrell met with and spoke to Buckhanan after August 18, but he did not return to their 

apartment before his arrest. 

¶ 10 There is no indication in the record that Gambrell was shown the summary of her statement 

or asked to sign or initial it. The summary concludes with the statement that after the interview 

was completed, the assistant State’s Attorney who was present decided not to call Gambrell 

before the grand jury. 

¶ 11 Buckhanan was apprehended by police in connection with Houston’s murder on January 9, 

2008. As noted, Junior filed his appearance for Buckhanan on January 11, 2008. 

¶ 12 The State did ultimately summon Gambrell to testify before the grand jury and her 

February 2008 testimony was substantially similar to her statement to the police, except that 

when she was asked whether Buckhanan told her “he had received a call from the State 

Police,” Gambrell testified that she did not recall him saying that. Further, when asked if 

Buckhanan told her the Chicago police were looking for him, Gambrell responded, “I don’t 

remember if he told me right then. I don’t remember. I mean I knew later, but I don’t remember 

if he told me at that point.” In her grand jury testimony, Gambrell was not asked whether 

Buckhanan told her (1) he had called the Illinois State Police and (2) the Illinois State Police 

told him to contact homicide detectives. 

¶ 13 The State hoped that Gambrell would testify consistently with her 2007 police statement. 

In particular, they wanted her to say that Buckhanan had been told to contact homicide 

detectives, to show that Buckhanan knew the police were looking for him in regards to a 

murder investigation. 

¶ 14 The State’s motion to disqualify was filed on September 30, 2009. At the time the motion 

was filed, trial was scheduled to commence three weeks later on October 19, 2009. In its 

motion, the State represented that in the event Gambrell denied that Buckhanan told her the 

Illinois State Police advised him to contact homicide detectives, the State would “possibly” 

call Senior to impeach her—thus opening the door for the jury to find out that defense 

counsel’s father represented a witness for the State.

¶ 15 The State argued that Junior should be disqualified for two reasons: first, it asserted that, 

through his father, Junior had access to confidential information about Gambrell that would 

give the defense an unfair advantage; second, it argued that if the jury learned Junior’s father 

represented a State witness, it would create an appearance of impropriety. The State admitted 

that it had been aware that Junior was representing Buckhanan since August 19, 2007 (the day 
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of the murder), when Junior called Area 4 and informed a detective that he was Buckhanan’s 

attorney. The State was also aware that Senior was representing Gambrell no later than 

September 12, 2007, since he accompanied her when she made her statement to the police. 

¶ 16 Junior filed a response to the State’s motion to disqualify in which he stated that both he 

and his father were solo practitioners and had never worked in partnership with each other; 

additionally, Senior never disclosed to him any confidential information regarding Gambrell. 

Junior also challenged the basis for the State’s disqualification motion by pointing out that 

Gambrell’s statement to police was not inconsistent with her grand jury testimony. 

Furthermore, Junior stated that he had represented Buckhanan in the current action for over 

two years (measured from the date Junior first informed police he was representing 

Buckhanan), and he had a relationship with Buckhanan for over six years, during which he 

represented him in various other criminal cases. Buckhanan wished to keep him as counsel and 

waived any conflict that might arise from Junior’s continued representation. Both Junior and 

Buckhanan signed the response to the State’s motion.

¶ 17 At the hearing on the motion for disqualification, Buckhanan formally waived any conflict 

of interest. Senior, the only witness, testified that he and his son were solo practitioners, 

although they were serving as cocounsel for defendants in three ongoing (and unrelated) 

criminal cases. He and Junior shared an office at 6133 South Ellis Avenue along with six other 

attorneys. In 2007, Senior’s primary office was at 53 West Jackson Boulevard, but he would 

sometimes meet clients at his son’s 6133 South Ellis Avenue office.

¶ 18 Senior testified that he had never represented Buckhanan on any civil or criminal matters. 

Although he was not Buckhanan’s attorney, on multiple occasions he appeared in Buckhanan’s 

case to ask for continuances when Junior was unavailable. On those occasions, Senior also 

talked to Buckhanan’s family to explain why Junior could not appear.

¶ 19 In September 2007, a relative or friend called Senior on Gambrell’s behalf. During that 

phone conversation, Gambrell got on the phone and told Senior that police were harassing her 

and she was afraid to go home. Senior arranged for Gambrell to meet him at Junior’s office. 

When Gambrell arrived, Junior was present; he recognized Gambrell and said, “I can’t talk to 

her.” Senior spoke with Gambrell in private, out of Junior’s presence, and agreed to represent 

her. Shortly thereafter, Senior contacted the police department to state that he was representing 

Gambrell and she did not wish to speak to any officers in connection with their investigation. 

¶ 20 On September 12, 2007, Gambrell was summoned to the courthouse, where Senior allowed 

her to speak to police in his presence. Senior testified that the police report of the meeting was 

mostly correct, but he did not recall Gambrell making one specific statement in the report that 

the State wanted to elicit at trial (i.e., that Buckhanan told Gambrell that he had called the 

Illinois State Police about his car and they told him to contact homicide detectives). 

¶ 21 Buckhanan was not apprehended until January 9, 2008. A month later, on February 5, 

2008, Gambrell testified before a grand jury, again in Senior’s presence. After Gambrell’s 

grand jury testimony, Senior’s contact with her was limited to one or two phone calls, as well 

as seeing her in the courtroom on “several dates” when he was continuing Buckhanan’s case. 

But pursuant to their agreement, Senior was still her attorney. 

¶ 22 Senior denied disclosing to Junior any confidential information regarding Gambrell. He 

admitted that after Gambrell gave her statement to police on September 12, 2007, Senior 

“briefly” told Junior the contents of that statement. Also, after Gambrell testified before the 

grand jury on February 5, 2008, Senior told Junior that she said “substantially what she had 
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said before the assistant State’s attorney,” though he never laid out the specifics of her 

testimony. 

¶ 23 During argument on the motion, the State represented to the court that Gambrell’s disputed 

statement in the 2007 police report was significant because it showed that Buckhanan knew he 

was wanted in connection with a homicide investigation. It contended that if Gambrell denied 

her statement, then “[c]learly, the State has to call the State’s Attorney as a witness” to 

impeach her. In that case, Junior would likely want to call Senior to the stand to “rehabilitate” 

Gambrell. In fact, the State said that Junior would have to call Senior, since failure to do so 

would be ineffective assistance of counsel. Junior, for his part, noted that the State had 

reversed its position on Senior’s testimony since it filed its disqualification motion: initially, 

the State said that it might call Senior, but now, it said that Junior might call Senior. Junior 

argued that this change of position was evidence that the State brought the disqualification 

motion in bad faith. The trial court disagreed, saying that it was a reasonable change in light of 

Senior’s testimony that he did not recall Gambrell making that statement. 

¶ 24 The trial court granted the State’s motion to disqualify Junior as Buckhanan’s attorney. In 

doing so, it agreed with the State’s assertion that Gambrell’s disputed statement was probative 

as to Buckhanan’s state of mind. Based on the possibility that Junior would call Senior to 

testify regarding that statement, the court believed there was a serious potential for conflict. 

The court found that Junior’s continued representation of Buckhanan could impact the State’s 

right to a fair trial, since he could potentially access confidential information about Gambrell 

that would give the defense an unfair advantage. It also found that there was a risk of the 

appearance of impropriety if the jury were to find out that the father of the defendant’s lawyer 

represented one of the State’s witnesses. But the court also stated: “I must emphasize that in 

indicating this, I am not *** indicating at all that anything that was done by Mr. Sam Adam Jr. 

or Sam Adam Sr. was any way unethical. This is a question of the appearance of impropriety.” 

Additionally, the court found that there was no indication of overreaching or bad faith on the 

part of the State. 

¶ 25 ANALYSIS 

¶ 26 The sixth amendment provides that a defendant in a criminal prosecution has a right to the 

assistance of counsel. U.S. Const., amend. VI. As part of this right, there is a presumption in 

favor of defendant’s counsel of choice. People v. Holmes, 141 Ill. 2d 204, 223 (1990) (quoting 

Wheat v. United States, 486 U.S. 153, 164 (1988)); see also United States v. Gonzalez-Lopez, 

548 U.S. 140, 146 (2006) (the sixth amendment “commands *** that the accused be defended 

by the counsel he believes to be best”). But this presumption may be overcome if the State 

proves that there is either an actual conflict of interest or a serious potential for conflict. Wheat, 

486 U.S. at 164; Rodriguez v. Chandler, 382 F.3d 670, 672 (7th Cir. 2004) (burden of proof 

lies with State). 

¶ 27 In Illinois, a two-part test governs State challenges to the defendant’s counsel of choice. 

First, the court must determine whether defense counsel has “a specific professional obligation 

that actually does conflict or has a serious potential to conflict with defendant’s interests.” 

People v. Ortega, 209 Ill. 2d 354, 361 (2004). If the answer is yes, then the court must 

determine whether the interests threatened by that conflict are weighty enough to overcome the 

presumption in favor of defendant’s counsel of choice. Id. In weighing the interests, courts 

consider the likelihood that a conflict will actually occur, since “a conflict that would seriously 
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undermine counsel’s effectiveness is not a basis for disqualification if it has little likelihood of 

occurring.” United States v. Turner, 594 F.3d 946, 952 (7th Cir. 2010). Courts also frequently 

consider 

“(1) the defendant’s interest in having the undivided loyalty of counsel; (2) the State’s 

right to a fair trial in which defense counsel acts ethically and does not use confidential 

information to attack a State’s witness; (3) the appearance of impropriety should the 

jury learn of the conflict; (4) the probability that continued representation by counsel of 

choice will provide grounds for overturning a conviction.” Ortega, 209 Ill. 2d at 

361-62.

Furthermore, where appropriate, the court should consider whether there are alternatives to 

disqualification that would remove the conflict while still protecting defendant’s right to 

counsel. Turner, 594 F.3d at 952. We review the trial court’s decision to disqualify counsel for 

an abuse of discretion, keeping in mind that trial courts need “ ‘substantial latitude’ ” in 

making such decisions because it is not always apparent before trial whether and in what ways 

a conflict might arise. Ortega, 209 Ill. 2d at 358 (quoting Wheat, 486 U.S. at 163). 

¶ 28 Our first question is whether the trial court could reasonably have found at least a serious 

potential for conflict arising from Junior’s representation of Buckhanan. Buckhanan argues 

that there was no potential for conflict, since Junior and Senior are both sole practitioners. The 

State contends that, although they are not formally associated in a firm, their professional 

relationship is close enough that they can be considered members of the same firm for conflicts 

purposes. Although it made no express finding on the point, the trial court apparently agreed. 

¶ 29 Rule 1.10(a) of the Illinois Rules of Professional Conduct states, in relevant part, “While 

lawyers are associated in a firm, none of them shall knowingly represent a client when any one 

of them practicing alone would be prohibited from doing so ***.” Ill. R. Prof’l Conduct (2010) 

R. 1.10(a) (eff. Jan. 1, 2010). Comment 2 to Rule 1.0 elaborates on what it means for lawyers 

to be “in a firm”:

“Whether two or more lawyers constitute a firm *** can depend on the specific facts. 

For example, two practitioners who share office space and occasionally consult or 

assist each other ordinarily would not be regarded as constituting a firm. However, if 

they present themselves to the public in a way that suggests that they are a firm or 

conduct themselves as a firm, they should be regarded as a firm for purposes of the 

Rules. The terms of any formal agreement between associated lawyers are relevant in 

determining whether they are a firm, as is the fact that they have mutual access to 

information concerning the clients they serve.” Ill. R. Prof’l Conduct (2010) R. 1.0, 

cmt. 2 (eff. Jan. 1, 2016). 

Although Senior and Junior were not formally associated in a law firm, it is at least arguable 

that they constitute a firm under Rule 1.0, given their closeness of their professional 

relationship. They acted as cocounsel in various criminal matters, shared office space, and 

Senior covered for Junior in a number of court appearances in this case. But even if we assume, 

for the sake of argument, that their relationship could give rise to some potential for conflict, 

we find that the interests threatened by that potential for conflict are not enough to overcome 

the constitutional presumption in favor of Buckhanan’s counsel of choice. Ortega, 209 Ill. 2d 

at 361. 

¶ 30 The parties agree that Buckhanan’s interest in having the undivided loyalty of counsel is 

not implicated here, since Buckhanan waived any conflict. The State nevertheless argues that 
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disqualification was necessary for two reasons: first, that exchange of confidential information 

between Senior and Junior could give the defense an unfair advantage; and second, that there 

was a purported inconsistency between Gambrell’s statement to police and her grand jury 

testimony, which might indicate that she would recant the former at trial, which might lead the 

parties to call Senior to either impeach or rehabilitate her, and which might create an 

appearance of impropriety in the eyes of the jury. But the first of these reasons was soundly 

refuted by Senior’s testimony and the trial court’s findings, while the second was groundless 

from its inception, since Gambrell’s statements did not actually contradict each other. Thus, 

the entire basis of the State’s argument is meritless.

¶ 31 We note at the outset that the timing of the disqualification motion calls into question its 

bona fides. The State had been aware since September 2007 that Gambrell was a potential 

witness and was represented by Senior. Junior informed police that he was representing 

Buckhanan on August 19, 2007, and he filed his appearance for Buckhanan in January 2008. If 

the State was truly concerned that Gambrell would “recant” her statement to the police based 

on her grand jury testimony, that would have been obvious by February 2008. On July 30, 

2009, the parties agreed to a trial date of October 19, 2009; the State did not move to disqualify 

Junior until September 30, less than one month before the scheduled trial. If the State had 

concerns about a potential conflict of interest or the supposed “unfair advantage” Senior’s 

representation of Gambrell gave Junior, it could have raised them long before trial. Instead, the 

State did nothing for more than two years, waiting until the eve of trial to file its 

disqualification motion. 

¶ 32 Like the timing of the motion, its substance was dubious. With regard to exchange of 

confidential information, Senior testified, without contradiction, that he did not disclose any 

confidential information about Gambrell to Junior. The trial court evidently found this 

testimony credible, since it found that neither Senior nor Junior did anything unethical. See Ill. 

R. Prof’l Conduct (2010) R. 1.6(a) (eff. Jan. 1, 2010) (unethical for attorney to reveal 

information relating to the representation of a client). Thus, there was no concern that Junior 

had confidential information about Gambrell that he might use to cross-examine her or 

otherwise bolster the defense. 

¶ 33 The State suggests that, at some unspecified time in the future, Junior might 

“inadvertently” have obtained confidential information about the People’s case, but it presents 

no explanation as to how this would occur. Certainly the State’s Attorney would not share 

confidences or trial strategy with a State witness, particularly one represented by a lawyer with 

connections to defense counsel. And from the record before us, we cannot discern what 

information Junior could have gained from Senior—inadvertently or otherwise—that would 

have allowed him an unfair advantage in cross-examining Gambrell. The evidence of 

Buckhanan’s flight after the murder is undisputed. And if Gambrell had a criminal record that 

would call into question her credibility, that information would be equally available to both 

sides. Other than the unsupported suggestion that Senior would act unethically and share client 

confidences with Junior, 1

the State does not articulate how Senior’s representation of 

Gambrell posed any threat to its right to a fair trial. Such vague and unsupported speculation is 

 

1Of course, nothing prevented Gambrell from communicating any information she chose to

Buckhanan and nothing prevented Buckhanan from revealing this information to his attorney.
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insufficient to overcome the constitutional presumption in favor of a defendant’s counsel of 

choice. 

¶ 34 We note that People v. Nevarez, 2012 IL App (1st) 093414, cited by the State on this issue, 

is readily distinguishable. In Nevarez, Junior represented the defendant, while Senior 

represented two State witnesses and was present as they were interviewed by prosecutors and 

detectives. The Nevarez court found that Senior could not later appear as defendant’s 

cocounsel. Id. ¶ 61. (Junior’s representation of defendant was apparently not challenged, and 

he continued to represent the defendant through the trial.) Contrary to the State’s contention, 

this is not at all analogous to the present case. A single attorney cannot represent both 

prosecution witnesses and the defendant in connection with the same case because it creates a 

legitimate concern that the attorney’s knowledge of client confidences might give him an 

unfair advantage in cross-examining those witnesses. Id. ¶¶ 60-61. As discussed, there is no 

such concern in this case, where Senior has never disclosed client confidences to Junior and is 

not himself seeking to represent Buckhanan. 

¶ 35 The State’s remaining argument centers upon a purported contradiction between 

Gambrell’s statement to police and her grand jury testimony. But, as noted, examination of 

these statements reveals no contradiction. According to the report of Gambrell’s statement to 

police, on the morning after the murder, “Buckhanan informed Gambrelle [sic] that he had 

called the State Police and they informed him that he had to call Homicide Detectives.” 

Meanwhile, in her grand jury testimony, Gambrell gave the following testimony about her 

meeting with Buckhanan: 

“Q. Did [Buckhanan] tell you whether or not he had received a call from the State 

Police? 

A. No, he didn’t say. I don’t remember him saying that.

 Q. Did he ever tell you whether or not Chicago Police Detectives were looking for 

him? 

A. I don’t remember if he told me right then. I don’t remember. I mean I knew later, 

but I don’t remember if he told me at that point.” (Emphasis added.)

Gambrell was not asked in her grand jury testimony whether Buckhanan told her that he had 

called the Illinois State Police. Conversely, in her statement to police, Gambrell did not say 

that Buckhanan told her that detectives were looking for him. Rather, the State hoped to infer 

from Buckhanan’s statement that the Illinois State Police told him to call homicide detectives 

that Buckhanan must have known that the police were looking for him in connection with the 

murder. Thus, there is no inconsistency between these statements. Using these statements as a 

basis for claiming that Gambrell would “recant” her statement to police, thus necessitating that 

witnesses be called first to impeach and then to rehabilitate her, is without merit. 

¶ 36 Moreover, even if Gambrell did happen to “recant,” and the State decided to call a witness 

to impeach her, and Junior responded by calling Senior to rehabilitate her—a rather remote 

chain of events—the most the State argues this gives rise to is an appearance of impropriety. 

And the appearance of impropriety alone is a slender reed on which to justify disqualification 

of counsel. As stated by the Supreme Court of Georgia: “The mere fact that the public may 

perceive some conduct as improper is, without some actual impropriety, insufficient 

justification for interference with a client’s right to counsel of choice. This becomes even more 

apparent when the perceived impropriety is not conduct at all but is, instead, status.” 
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Blumenfeld v. Borenstein, 276 S.E.2d 607, 609 (Ga. 1981) (refusing to disqualify attorney 

merely because attorney’s spouse had previously represented the opposing party; evidence 

showed that attorney’s spouse had never revealed client confidences or otherwise acted 

unethically); see also United States v. Washington, 797 F.2d 1461, 1466 (9th Cir. 1986) (“We 

have grave doubts whether an appearance of impropriety would ever create a sufficiently 

serious threat to public confidence in the integrity of the judicial process to justify overriding 

Sixth Amendment rights.”). As noted, the trial court explicitly found that neither Junior nor 

Senior committed any actual impropriety in their representation of their clients, so the mere 

appearance of impropriety should not be controlling. 

¶ 37 More importantly, the potential for any appearance of impropriety could easily have been 

cured if the parties stipulated to Senior’s testimony. See Turner, 594 F.3d at 952 (court should 

consider whether there are alternatives to disqualification that would remove the conflict while 

still protecting defendant’s right to counsel). Specifically, the parties could have stipulated that 

if called to the stand, Gambrell’s attorney would testify that he was present when Gambrell 

made her 2007 statement to police, and he did not recall her saying that Buckhanan told her he 

had been told to contact homicide detectives. By using a stipulation to avoid mention of 

Senior’s name or his relationship to defense counsel, there would be no risk of any appearance 

of impropriety in the eyes of the jury. 

¶ 38 The State emphasizes that the propriety of the disqualification must not be judged in 

hindsight because trial judges cannot be expected to anticipate all conflicts that may arise in the 

course of a trial. See Wheat, 486 U.S. at 162 (trial court “must pass on the issue of whether or 

not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of 

hindsight after the trial has taken place, but in the murkier pretrial context when relationships 

between parties are seen through a glass, darkly”). But by the same token, a trial judge who is 

not privy to the evidence the State has amassed in support of its case is not in a position to 

second-guess prosecutors when they insist on the importance of certain evidence. And by 

September 2009, the State certainly knew the evidence it possessed. 

¶ 39 At the disqualification hearing, the State told the judge that it intended to use Gambrell’s 

testimony regarding her conversation with Buckhanan the day after the murder to show that 

Buckhanan knew he was wanted in a homicide investigation, thus explaining his abrupt 

departure. The experienced and respected trial judge was entitled to accept the State’s assertion 

at face value. He found that the disputed statement was probative as to Buckhanan’s state of 

mind and attempting to elicit that statement could possibly result in Junior having to 

cross-examine his father. What the trial court could not have known at that point was the 

abundant evidence of Buckhanan’s flight in the State’s possession wholly apart from 

Gambrell’s testimony.

¶ 40 First and foremost, the State had Gambrell’s testimony that, on the morning after the 

shooting, Buckhanan left their apartment without packing his bags or telling Gambrell where 

he was going and he never returned. Thus, the State was perfectly able to make its point about 

Buckhanan’s abrupt abandonment of his girlfriend, his child and his home (and the 

consciousness of guilt such conduct implied) without inquiring into the substance of his 

conversation with Gambrell. The State never suggested that Gambrell would recant this 

consistent aspect of both her statement to police and her grand jury testimony. 

¶ 41 The State also had numerous other witnesses to testify on the subject of Buckhanan’s 

flight. For instance, a vehicle service consultant for Infiniti of Lisle testified that Buckhanan 
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brought in his car for repair and was issued a loaner car on the day before the shooting. A 

couple of hours after the shooting, a state trooper found the loaner car in a highway ditch with 

its keys in the ignition. Buckhanan never returned to Infiniti of Lisle to retrieve his car or pay 

his repair bill. Moreover, detectives testified that several months after the shooting, Buckhanan 

fled a vehicle stop, leading them on a several-block foot chase before he was apprehended. 

¶ 42 Certainly had the trial court been aware of the relative insignificance of Gambrell’s 

post-murder conversation with Buckhanan, its analysis of the relevant factors might well have 

resulted in denial of the State’s disqualification motion. And, in fact, once the State’s 

disqualification motion was granted and the case proceeded to trial with substitute counsel, the 

State made no attempt to elicit this evidence from Gambrell. In fact, the State did not ask 

Gambrell anything about the content of her conversation with Buckhanan on the morning after 

the murder. More than anything else, this leads us to question the State’s good faith in 

depriving Buckhanan of his counsel of choice on the representation that the State planned to 

elicit this information at trial. 

¶ 43 The State additionally argues that if Junior had continued representing Buckhanan, and he 

was convicted, Buckhanan could have appealed on grounds that his trial counsel was 

constitutionally ineffective for having labored under a conflict of interest. But Buckhanan 

waived any conflict in open court after indicating that he read Junior’s response to the State’s 

disqualification motion. See People v. Robinson, 79 Ill. 2d 147, 166 (1979) (upholding 

conviction where defendant argued that his counsel had a conflict of interest, but defendant 

made a knowing and intelligent waiver of any conflict). We note that the State does not argue 

that Buckhanan’s waiver was uninformed or otherwise ineffective. Additionally, to use the 

words of the Robinson court, Buckhanan’s decision to waive any conflict “does not appear 

imprudent” (id.) given the tenuous nature of the potential conflict and Junior’s long 

professional relationship with Buckhanan. 

¶ 44 Finally, the State argues that Buckhanan could have taken an interlocutory appeal of the 

disqualification order, rather than proceeding to trial with substitute counsel and then raising 

the issue following his conviction. See Ill. S. Ct. R. 604(g) (eff. July 1, 2006) (a criminal 

defendant “may petition for leave to appeal” the circuit court’s disqualification of his attorney 

based on a conflict of interest (emphasis added)). The State implies that Buckhanan’s failure to 

pursue an interlocutory appeal might have been a strategic ploy to obtain “two bites of the 

apple.” We find such speculation to be both unsupported and implausible. When Buckhanan’s 

counsel was disqualified on November 16, 2009, Buckhanan had been in custody for nearly 

two years. He could logically have decided that it best served his interests to proceed to trial, 

instead of filing an appeal that would delay his trial date—and extend his jail stay—for at least 

another year. But in any event, the plain language of Rule 604(g) provides that interlocutory 

appeals of disqualification orders are permissive rather than mandatory, and the State does not 

cite any authority to the contrary. 

¶ 45 CONCLUSION 

¶ 46 We hold that the trial court’s disqualification order violated Buckhanan’s sixth amendment 

right to choose his own counsel. Under Gonzalez-Lopez, 548 U.S. at 148-51, this constitutional 

violation is a structural error not subject to harmless-error review. We therefore reverse 

Buckhanan’s conviction and remand for retrial. Because we are reversing his conviction, we 

need not consider Buckhanan’s contentions that he was prejudiced by the performance of 
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substitute counsel. 

¶ 47 Reversed and remanded.