Docket N os. 107003 , 107112 c ons.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

In re DENZEL W., a Minor (The People o f the State

of Il linois, Appellan t, v. Denzel W., a Minor, Ap p ellee).–THE PEOPLE OF THE STAT E O F IL

LI NOIS, Appellee, v. KENNETH SMITH, Appellan t.

Opinion filed March 18, 2010.

JUSTICE G ARM AN delive

red the j udgmen

t of the c ourt, with opinion. Chief Justice Fitzgerald and Justices Thomas, Kilbride and Karmeier concurred in the judg ment and opinion. Justice Freeman

dissented, with opinion, joined by Justice Burke.

OPINION

This consolidated appeal raises the issue of whether a defendant’s right to counsel is violated where defense counsel fails to c o mply with Sup reme C ou rt Ru le 71 1 ( 21 0 Il l. 2d R. 71 1) . S pe ci fi ca ll y, counsel in each of these cases failed to file the a ccused’s written consent to pa rt ic ip at io n i n t he de fe ns e b y a n on at to rn ey senio r law studentor law graduate (a 711 law student). In Den zel W. , respondent

was adjudicated delinquent following a bench trial

in which a 711 law studentassisted

the assist ant public defender and conducted the direct and redirect examinations of one def ens e wi tn ess . In Smith , a 711 law1 Although t he transcript spells the v ictim’s name

phonetically as “Bobby,” the par ties’ bri efs to th

is court indicate that her nam e is spelled “Bobbi.”

-2- studentparticipated along with the assistant public defender in a hearing on defendant’s motion to suppress evidence. I n neither case does the record indicate that defense counse l obtained the consent of the respondent or

defendant to participation by the 711 law stude

nt. Respondent

and defendant

argue that the p ublic def ender’ s failure

to obtain such consent denied them their right to counsel. For the

reasons that follow, we revers e the dec ision of the appella te court in Denzel W. and remand that cause for further pr ocee d ings consistent with this opinion . We affir

m the dec ision of the

appella te court in Smith

.

BACKGROUND

1. In r e De nze l W. Respondent

Denzel W., a minor, was charged, in the circuit cour t of Cook County

, with one count of a

ggra vated ba ttery agains tBobbi F. 1 arising from an incide nt that occurred at Ridgeland Commons community

park in Oak Park, Illinois. At a bench trial on April 7, 2005 , resp ondent was represented by an assistant public defender, who stated before trial that he would “be assisted by *** 7- 11 [ sic ] law clerk [J.F.]” The cover sheet of the tri al transc ript simila

rly identifies J.F. as “7-11,” b ut no wr itten consent to her participation was filed. At trial, B obbi F. te st ified tha t she and several friends had gone to Ridgel and C ommons to sled, and Bobbi was approached by respondent

and his friends. Bobbi stated that altho ugh she t ried to walk away, r espondent followed her and began making lewd comments. Bobbi the n ra

n away from respo ndent into a park b uild ing, butresponde

nt foll ow ed her and dragg ed her out of the building by her pony tail. Acc ording t

o Bobbi, r

esponde nt then pul l ed her to the front of the bu ilding where he repeatedly slammed her head into a patchof ice. A few moments later, respondent picked Bobbi upand threwher into a g arbag e can be fore wa lking away . On cros sexamination , conducted by the assistant public defender, Bobbi-3- admitted that she and respondent had

quarre led in the

past. The State also cal led Gran t M., one of the boy s who had b een sled

ding with Bobbi F., and Bobbi’s mother. Both witnesses were cross-examined by the assistant public defe nder. Respondent ’ s first witness was Tequila T., and the direct examination of Te quila was per formed by the 711 law s tudent, J .F. Tequila testi fied t hat sh e had b een sl eddin g at R idgeland Common that day along with Bobbi F. , Grant M., and others. She stated that she had not see n anything out of the ordinary that da

y, and she had notseen Bo

bbi with res pondent, although she had seen respondent and his friends at the park. Whe n J.F. beg an to ask T equila a leading question about wh at she ha d seen respo ndent and hi s frie nds do ing, the court interjected an admonition:

“Q. [by J.F. ] Did y

ou see him

doing a nyt hing with his friends ? A. The y was just talki ng. Q. They were jus t socializin

g at the Ridgela nd Comm on s? THE COURT: No. No. It’s not what she said. Don’t you

summa rize and put words in her mouth. Y ou ask que stions. That’s all. You do not ask leading questions.” J.F. also attempted to eli cit testimony about Bobbi’s reputa tion around sc hool: “Q. D id y ou go to sch ool wi th [Bo bbi]? A. Yes. Q. What ty

pe of re putation d

id [Bobbi] ha

ve at school? [State’s Attorney]: Objection. THE COURT: Her reputation–Sustained. [Assistant public defender]: Judge. THE COURT : If i

tgoes to p eacef

ulness, that’s fi

ne. I f it goe s t o an ythi ng e ls e, n o. It has nothin g to do wi ththis case. You hav e to lay a pro per fou nda ti on f or r epu tat io n. If

you’re going to go to pe aceful

ness. [J.F.]: Nothing further with this witness, your Honor.” Oncross-e

xamination, Tequila c laim edthat she and others had warned Bobbi not

to go down the sledding hill when respondent and-4- his friends were there. The assistant public defender then attempted to begin a redirect examination, but he was stopped by the court, who said, “You didn ’ t start this examination. You don ’t get to finish it. Your co-counsel did the exam ination. *** We don’t play tag team here.” The attorney

replied, “That’s fin e,” and th e co urt add ed, “If she [J.F.] has other questions to ask on redirect, fine.”J.F. then conducted a brief redire ct. J.F. also conducte d a direc t examinati on of Tra

vis P., a friend of responde nt. Travis testified that

he had been with respondent at the park, and that he had been apart from respondent for only

about two minutes during t

he afte rnoon. He

also said

that h e did not see respondent

grab Bobbi, nor did hesee any injurie s on Bobbi that da y. Respondent

then cal led Bobb i F. to testif y ag ain, and she was examined by the assistant public defende r. Fi na ll y, respondent

testified on his ownbehalf, also examined by the assistant public defender. Respondent clai med that he and his friends were having a snowball fight whe n one of his frien ds accide ntally hit Bobbi with a snowball. Accord ing to re spondent, Bobbi mistakenly believed he ha d thrownthe errant snowball, and the two had argued, but that no physical altercation had taken place. He specific ally

denied chasingBobbi, hitting her, or slamming her head into the ground. The assistant public defender also gave re spondent’s closing argume nt, arguing

that Bob bi had fa bricate d the enti

re story because she “never

liked” r esponde nt. The cour

t found tha

t the State had met its burden, and adjudicated respondent delinquent. Respondent appealed, and the appellate court reversed the circuit court’s decision and o rdere d a new trial. In r e De nze l W. , No. 1–05–3374 (unpublished

order under Supreme Court Rule 23). The court found that the failure to obtain cons ent to representation by a 711 law studentwas a violation of respo ndent’s right to counsel, rely ing on People v. Schlai ss , 174 I ll. App. 3d

78 (1988) (finding defendant was denied counsel where he did not consent to participation of 711 law studentinhis representation). It re jected the State’s argument that the failure should be s

ubject to a harmless-error

analysis, holding that the lack of consent amounted

to a compl ete deni al of cou nsel. We granted the State’s petition for leave to appeal pur s uant to Supreme Court Rule 315 (210 Ill. 2d R. 315).-5- 2. People v

. Smith D efendant

Kenneth Smith was charged, in the circuit cou rt o f Cook County, with possession of a controlled substance w ith intent to deliver, delivery

of a controlled substance, pos s ession of a controlled

substance with intent to deliver withi n 1,000 f eet of a school, and delivery

of a controlled substance within 1,000 feet of a school. Befor

e trial, d efenda nt moved to

quash his arrest and

suppress all evide nce ga thered t herefr om, arguing

that the police had not had probable cause. The circuit court held a hearing on the motion, and def endant was represented

by an a ss istant public defender and J.B., an intern practicing pursuant to Rule 711. The cover sheet for the transcript of the hearing indicates that

J.B. appeared “[p]ursuant to Supreme Court Rule 7-11 [ sic ].” Nothing else in the record

refer ences J.B .’s status ; neither J.B. nor the assistant public defender stated on the record that J.B. was not a

license d attorne

y, a nd no writt

en co nsent from defendant was filed. During the hearing, J .B. conducted the examination of defe ndant, who testified that

he had been walking on a sidewalk when a police

car pulled up on the street behind him. According to defendant, the officers got out

of the car and asked defendant if he kne w “anything about a gun.” Defendant testified that the offic ers then

search ed him and, find ing the p ackets o f heroin , arres ted him. The State’s so le witnes s, Of ficer Griggs, testified that he ha d observed defendant and codefendant Antonio Rollins standing on a

corner for 20 to 30 minutes. During that time, whenever a car pulled up one of the defendants would approach the car and take something from the driver. He would then walk back to the corner a nd the n return to the car, handing

something off to the driver. Griggs testified that he could not observe what exactly had changed hands. However, after the third c ar had pu

lled awa y, G riggs radioed to nearby officers to stop the car an d searc h the occupant. When he received confirmation

th at the dr

iver of that car h ad small pa ckets of heroin wrapped in ti nfoil, Griggs approached de fendant and Rollins and arrested them. Griggs did not personally search defendant, b ut he testified that the officers who performed the search found

three tinfoil packets containi ng her oin. On cr

oss- ex amination, conducted by the assistantpublic defender, Gri ggs agre ed that it was dark a t the time-6- of the arrest and he could only see using artifici al li ght. He also agreed that he di d

not k now what had changed hands betwe en the men on the

street a nd the dri vers, but he suspec

ted it was drugs. After defendant and Griggs ha d testified, J.B. gave the defendant’s argument on the motion. He conceded that the police had

reasona ble suspicion enough to stop defendant, but argued that Griggs d i d not have probable cause to arrest def endant. At the close of the hearin g, the trial court denied def end ant’s motion, finding that Grigg s’ testimony had

established the exis tence of probable cause to arrest d efenda nt. At t rial, de fendant

was represente d by

two assist

ant publi c defende rs; J.B. did not participate in the defense. A jury found defe ndant not guilt y of deliver y of a contro lled substa

nce but g uilty of p ossession of a controlled substance within 1,000 y ards of a school. Defend

ant appe aled, an

d the appe llate cou

rt a ffirm ed defendant’s conviction. Smith , 384 Ill. App. 3d 489. The court analyzed de fendant’s c laims in the context of an ineffective assistance of counsel c laim, noting that defendant was represente d at trial only by licensed attorney s. The court also opined that J.B.’s participation in the mo tion to qua sh heari ng was m inimal, an

d he prima

rily did nothing more thanreassert the written motion prepared by a licensed public defender. We granted defendant’s petition

for leave to appeal pursuant to Supreme Court Rule 315, and we consolidated his appeal with the State’s appeal in Den zel W.

ANA LYSIS Under Supreme C ourt Rule

711, a recent law gradua te or senior law student who has completed three-fifths of his or her course work and who is in good academic standing may perform legal services “[u ]nder the super

vision of a

member o f the bar

of this S tate, an d with the written consent of

the per son on whos e behalf he/she is actin g, which sha

ll be filed in the case and brought to the attention of the judge.” 210 Ill. 2d R. 711(c). In criminal case s “in which the p en alty may be imprisonment,” Rule 711(c )(2)(ii) provides that the 711 law student may “pa rticipate in pretrial, trial, an d posttrial procee dings as an assistant of the supervising member of the bar, who shallbe present and responsible for the conduct of the proceedings.”-7- 210 Ill. 2d R. 711(c)(2) (ii). I n “all other civil and criminal cases,” Rule 711 permits the student to condu ct “all p retrial, trial, and posttrial proceedi ngs ” under the supervision of a licensed attorney who need not be present. 210 I ll. 2d R. 711(c)(2)(iii). Rule 711 provides a valuable mechanism by whichlaw stude

nts
can gain practica l exp erienc e in the c ourtroom under the

close supervisionof

an ex pe ri en ce d a tt or ne y. We join the n umerous c ourts that have lauded the invaluable experienceprovided to law stud

ents throu gh stud ent licensing progra ms similar t

o that pro vided in Ru

le 711. See, e.g. , Duval

v. State , 744 So. 2d 523, 525 (Fla. App. 1999); City of Seattle

v. Ratliff , 100 Wash. 2d 212, 2 17-18, 667 P.2d 630, 633 (1983); People v. Perez , 24 Cal. 3d 133, 140-42, 594 P.2d 1, 5-6, 155 Cal. Rptr. 176, 180-81 (1979). However, students who are granted permission to perform legal ser v ices unde

r Rule 711 must adhere to the same rule s of leg al proce dure, et hics, and practice that bind fully license d attorne

ys. Along withthe pr ivil ege of their c losely supervised

practice comes the responsibility of ensuring that they are at all times in

compliance with th e law and the rule s of this co urt. This responsibility applies with special forc e to t he re quireme nts enumerated

in Rule 711, the fulfillment of which are conditions precedent to the pra

cti c e of law u

nder tha t rule. Simi larly , it is incumbent

upon all me

mbers of the bar w ho allow 7 11 law stud

ents to assist in th eir pra

ctice, w ho remai n “respon sible for the conduct of the procee dings” u

nder the rule (21 0 Ill. 2d R. 711(c)( 2)(ii)) , to ensure that our rules are followed. As we have often noted, “our rules are not mere suggestions.” People v. Houston , 226 Ill. 2 d 1 35, 152 (2007); see also People v. Wilk , 124 Ill. 2d 93, 103 (1988) (“At the risk of stating the obviou s, it sh ould be po inted out that the ru les adopt ed by this cour t concerning

criminal defendants *** are in fact rules of procedure and notsuggestions”). Inde ed, they have the force of law and are to be construed in the same manner as statutes. Houston , 226 Ill. 2d at 152; People v . Norris , 214 Ill. 2d

92, 97 (20 05). Her

e, the pla inmeaning of Rule 711 is

clear: written consent must be obtained from the client sought to be represented before legal serviced may be performed by the 711 law student. Accordingly , until consent is obtained and filed pu rs ua nt to Ru le 71 1, th e s tu de nt ma y not perfor m legal service s.-8- Inthe cases before us, we first acknow ledge that, a lth ough al l pa rties assume t

hat neither respondent nor defendant in fact consented to the part

icip ation of the 711 law stude nt, neithe r has spe cifical ly alleged an ac tual lack of consent. However, Rule 711 requires not only that consent

be obtained, but that written consent “be filed in the

caseand brought to the att ention of the judge or presiding office r.” 210 Ill. 2d R. 711(c). Neither re cord before us contains the requ isite writtenconsent, and the State has not argued that written consent was actually filed in e ither ca se. Ther efore, we find that R

ul e 711 was violated in both ca ses. Respondent

and defendant urge us to end our inquiry here. The

y argue that they have be en denied couns el si mply because their assistantpublic defenders were assisted by 711 l aw st

udents who failed to comply

with all of

Rule 711. They re ly on the decision by the Supreme Court of Washington in City of Seattle v. Ratliff , which he ld that “representation by

a law student

intern wh

o fails to c omply

with the condition s placed upon his or her practice does constitute an

a bsolute denial of the right to counsel which requires re versal

. ” Ratliff, 100 Wash. 2d at 219, 667 P.2d at 634. Our appe llate court adopted the Ratliff

approach in People v

. Schlaiss , 174 Ill. App. 3d 78 (1988), and in Denzel W. below. Ini ti al ly, we note that

the facts in Ratliff

are disti nguisha ble from the present

cases. In Ratliff

, the defendant appeared for trial on three consolidated

charges, but no counsel appear ed to represent

him. The defendant told the court tha

t an inter n with the c ounty

public defender associationwas represent ing him in another case, and the court summoned

the intern. When the intern arrived, the court expressed an intent to go forward with the trial with the intern as counsel. The internexplained that he was a le gal intern, that he was not representing

the defendant

in the cases scheduled for trial, and that he

was not prepa

red to g o forwa

rd with a t

rial. At the prosec

uti on ’s urging, however, the cour t requ ired the

intern, o ver obje ction, to proceed with the trial. Ratliff

, 1 00 Wash. 2d at 213-15, 667 P.2d at 630-31. Th e Ratliff

court acknowledged that “one who is a uthor ized t o practice only

under ce rtain conditions, such as a legal intern, may be considered

‘counsel’ for

constitutional purposes,” but it emphasized that “this is so only when he or she complies with those con

ditions”-9- (emphas is in original). Ratliff , 100 Wash. 2d at 218, 667 P.2d at 633. It therefore concluded

that, because the intern was not “counsel” for constitutional purposes, the defenda nt had bee

n denied c ounsel. Ratliff , 100 Wash. 2d at 219, 667 P.2d at 634. Schlaiss , on the other hand, applied Ratliff to very diffe rent factual circumstanc es. There, the defendant was repr esented at trial and sentencing by

an assistant public defender and a 711 law student. As in the present cases, the 711 law student failed to recor d the writtenconsent

of the defendant. Citing the broad languag e of Ratliff for support, t

h e app ellate court held that “[b]ecause the conditions necessary for [t he stu dent ’s] re pres enta tion o f [the

defe ndan t] w e re notmet, he cannot be considered ‘coun sel’ fo r constitutional purposes

. Therefore, under these facts, we conclude that the defendant was denied counsel in violation of the sixth amendment.” Schlaiss , 174 Ill. App. 3d at 81. This court has held that, for constitution al purpo ses, the term “counse l” means “a duly lice nsed and q ualified lawye r, and not an attorney in fact or a layman.” Peo ple v. Cox , 12 Ill. 2d 265, 269 (1957). Our rules establish the requirements that attorneys must meet to be considered

“duly licensed a

nd qualified.” See, e.g. , 210 Ill. 2d Rs. 704 (“Qualification on Examination”), 705 (“Admission on Motion”). At to rn eys wh o d o n ot co mp ly w ith the rules of licensure

we have es tablished are not “duly licensed” to practice in this state. However, a 711 la w student is allowed to practice notwithstanding the fact that he or she has not completed the ordinary re quirements of licensure; the stude

nt has not ne cessarily ha d his or her education certified by a n accre dited law

school, pr

oven his or her

competence by pass ing a ba

r examinat

ion, and e stablishe d his or he r fitness to practice law by passing

a character and fitness evalua tion. To ensure that the client will receive adequate repre sent ation, Rule 711 t herefore imposes specific

procedu res that m ust be followed, and a student who fails to c omply

with Rule 711 has not satisfied the requirements we have established to protect the rights of his or her client. Thus, we hold that a student who has not complied with the requirements of Rule 711 is n

ot counse l for con stitutiona l purpose s. This det erm ination do es not end our inquir

y, h owever . In these cases, respondent and defendant were not represented by

law students alone. Both were also represented b y f ully license d assistan

t public-10- defenders who were present and actively involved in th e representation. As the California Supreme Court said of California’s analogous student practice rule in People v. Perez , “[t]he defenda

nt *** is not

merely rep resented by

a student who has notbeen admitted to the bar; he is represented by an experienced

member of the bar

who se rves as counsel of record, undertakes personal and immediate supervision of the student’s performance, and assumes re sp onsibility for the conduct of the defense.” People v. Perez , 24 Cal. 3d at 138, 594 P.2d at 4, 155 Cal. Rptr. at 179. Rule 711 specifically pr

ovides that, in criminal cases in which the penalty may be impri sonment, the student-practitioner may particip ate only “ as an assist

ant of the supervising member of the bar who shall be p resent and responsible for the conduct of the proceedi ngs

. ” (Emphases added.) 210 Ill. 2 d R. 711(e). Thus, the rule is very clear that the responsibility for the re p re sentation falls not on the student buton th e supe rvisi ng atto rney. We ac knowl edge that the supervising attorney nee d only be actua lly present when the

defendant may

face imprisonme

nt; inother criminal cases, a 711 law student may appe ar alone. 210 I ll. 2d R. 711. However, the United States Supreme Court ha s recog nized a constitutional right to counsel only wher e the defendant may fac e imprisonment. See Scott v. I llinois , 440 U.S. 367, 373, 59 L. Ed . 2d 383, 38 9, 99 S. Ct. 1158, 1162(1979); Argersinger

v. Ha mlin , 407 U. S. 25, 37, 32 L. Ed. 2d 530, 538, 92 S. Ct. 2006, 2012 (1972), Therefore, Rule 711 specifically requires that, in cases inwhichthe defendant is entitled to counsel, a fully licensed attorney must be present and supervising the representa tion. The presence of the licensed attorney , who certainly is c ounsel for constitutional purposes , is not somehow “cancelled out” by the law student’s participation, even if the law student

has not complied with Rule 711. Where the supervising attorney properly super

vises the 711 law student a

nd remai ns respon sible for

the repr esentat ion, as Rule 711 require s, we hold that the defendant has not been denied counsel. To the extent t

hat People v

. Schlaiss is inconsiste

nt with this hold ing, it is overruled. Co nv er se ly, where the defendant is entitled to counsel butthe 711 law student a

ppears a lone in vio lati on of the rule, the defendant clearly has been denied counsel. In re Moo re , cited by responde ntand-11- defenda nt, is an example. There, the trial court appointed a law st udent, believin

g him to be

an assista

nt public d

efende r, to assis t a pro se respondent in an involuntary c ommitment proceedingat which the respondent had a statutory right to counsel. In re Moo re , 63 Ill

. App. 3d 899, 900 (1978). The law student was not supervised at any pointby a l ic en se d a tt or ne y, and therefore respondent did not rece ive the assistance of counsel to which he was entitled. However, a supervising attorney do es n ot satisfy his or her obligation

under Rul e 711 merely by being phy sically present. Unde r the standard

set forth in Strickland v. Washington , 466 U.S. 668, 80 L. Ed . 2d 674, 10 4 S. Ct. 2052 ( 1984), a defenda nt can de monstrate that he received ineff

ective a ssistance

of counse l by

showing both that counsel’s performance “fell below a n objective standard of

reasona bleness” and that the deficient perform an ce prejudiced the defense. Strickland , 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. Although res pondent a nd defen dant urg e us to ado

pt a
newframew ork in which to evaluat e failur es to comp ly w

ith Rule 711, we find that

the Strickland

analy sis provid es a more appropr iate

avenue for res olvi ng s uch errors. Thus, where the attorney ’s supervision of a 711 law

student is insufficient

in quality, nature, or duration, such that his or her performance amounts to ineffective assistance of counsel under Strickland , the defenda nt is entitle d to a new tria l. Final ly, re spondent a

nd defen dant arg ue that c onsent to participation

by a 711 law

student is equivalent to a partial waiver of counsel, and thus any

failure to obtain that

consent must be treated as

anindependent error of constitutional magni tud e. Because we find that a defen dant who i s repre sented withthe aid of a 711 law student receiv es his “counsel” for constitutional purposes from the licensed supervising attorne

y, w e neces sarily

reject this argument. Wherethe supervising attorney fulfills his or her r esponsibility under Rule 711, the defendant does not

give up his right

to counse l by

consenti ng to the student’s particip ation, nor does the f

ailure to obtain that consent itself amount to a de

nial of c ounsel. We now turnto the cases at bar. I n Den zel W. , the appellate court

re ve rsed the trial court’s ruling adjudicating responde nt delinquent and ordered a new trial, finding that the violation of Rule711 resulted ina complete d enial of c ounsel. In r e De nze l W. , No. 1–05–3374-12- (unpublished

orde r under Su

prem e Cour

t Rule 23). We disagree. As

we have explained, a

violation o f Rule 711 does not a mount to a per
se denial of counsel. Instead, the supervising attorney ’s performance must be evaluated as a whole under Stric kland

. The fail ure to fil e writtenconsent u

nder Rule

711 is one f

acto rto consider when evaluatingwhether counsel was ineffective, but a r evi ewing court must assess that

failure in light of counsel’s overall perfor mance, and it must deter

mine whet

her coun sel’s pe

rforma nce p rejudiced the accused. Strickland , 466 U.S . at 687 , 80 L. Ed. 2d at 6 93, 104 S. Ct. at 2064. Respondent

also argues that he was denied counse l when the trial court prevent ed the sup ervising

assistant p ubli c defender from conducting the redi

rect exa minatio n of Te quila T., and in the alternative, he argues that his counsel was ineffe ctive, citing several alleged errors made at tr

ial. With respect to the redirect of Tequila T., the appellate court noted that the trial court’s actions were “error,” but because the appellate court resolved respondent’sclaims on the issue of consent alone, it performed no analy sis of the import of

the alleged

error. Similarly, the court did not address re spondent’s claims that he receiv ed ineff

ective a ssistance

of counse l. We agree with theappellate court that the trial court’s actions in Denzel W. are troubling. Although we appre ciate the court’s desireto teach the 711 law s tudent through experience, it is important that courts before

whom 711 la

w students

appear be particularly

mindful of the super

vising a ttorney ’s oblig ation to e nsure tha t c ounse l is effective. As the appellate cour t stated, “[a]dherence to preferred courtroom

procedures should n ot tru mp the ac cused’s right to effective assistanc e of coun sel in a ‘t eaching exercise ’ invol ving a 7 1 1 student.” In r e De nze l W. , No. 1–05–3374 (unpublished order under Supreme Court

Rule 23). The

refore , althoug

h we disa gree w ith t he appellate court’s determination that respondent is entitled to a

newtrial based on

a Rule 711 violation alone, we remand Den zel W. to the appellate court for a determination of whethe r the trial court’s actio ns, along with respondent’s other claimed error s, resulted

i n responde nt’s rec eiving i

neffective assis tance of

counsel. Unlike the appellate court in Denzel W ., the app ellate c ourt in Smith did consider defe ndant’s claims as part of an ineffective assistance of counse l analy sis , findi ng that counsel was not-13- ineffective. People v

. Smith , 384 Ill. App. 3d 489 (2008). Defendant argues only that the court should have instea d employed

a per se rule; he does not a

rgue that the co

urt’s Strickland

analysis was fla

wed, and he has no t raised any othe r claims of error. Because we reject defendant’s sole arg

ument that the failure to comply w ith Rule 711 amounts to a per se denial of counsel, we affirm the decision of th e appellate court in Smith

.

CONCLUSIO N We reject r

esponde nt and def endant’ s claim

that they were denied counsel be ca us e t he y d id not consent to a 711 law student’s participation

in their defense. Accordingly , we reverse the decision of the appellate court in Denzel W. and remand the cause to

the appe llate court with directions to consider

responde nt’s addi tional ar guments

. We affirm the decision of the appellate court in Smith

.

No. 107003–Reversed and remanded.

No. 107112–Affirmed.

JUS TICE FRE EMAN, diss entin g: This case pr

esents th e simp le iss ue of wha t happens when Rule 711 is violated due to the f ailure to obtain the required written consent o f the p erson on who se beh alf th e law s tuden t was a cting. Resolving this issue requ i res that we interpret our own rules. In so doin g, the court once again harrumphs the f amiliar edict that its rules “are not mere

sugge stions”and that “[i]ndeed, they have the force of law.” Slip op. at 7; see a lso People v. Glasper , 234 Ill. 2d 173, 189 (2009) (addre ssing wh at happe ns when a trial judg e does no t permit

v oir dir e questioning as required under Rule 431). Those fa miliar with this cour t’s other , recen

t interpr etations o f its own r

ules will

reco gniz e what come s next: an a naly sis that will a

ctually strip Rule 711 of this “for ce of la w,” ren dering it nothing more then the “mere suggestion” that it is not supposed to be. The last most recent

e xample of this edict-invalidating analy sis came in People v. Glasper

. There, the court’s answer

to what happens when Rule 431 is violated2 The rule itself pr ovide s that 7 11 stud

ents can only work in a “le gal ai d bureau, legal assistanc e progr am, o rganization, or clini c *** the office of the public defender; or *** a law office o f the St ate or a ny its subdivisions.”

210 Ill. 2 d R. 711(b). While there are “law offices of the State” that serve in a p

rosecutorial capacit

y such as the A ttorney Genera l, the vast amou nt of of fices th at com

e under the rul e’s purview are thos e that give assista

nce to the poor. Priva

te law firms cann

ot have students w

ork for them in th e same cap acity.

-14- was the same as he re: noth ing. The se kinds of decision s not only undermine the force of our rules, the y erode respect for judicial decision s. After a l l, how many times can this court continue to sa y “Do as I say, not as I do” before no res pectremains? The analy sis offered by t he court inthese consolidated

appeals is problematic for

a number of

rea son s. In the Smith appeal, which is the easier case of the two, the co urt fails to give effect to the consent requir ement of Rule 711, thereby r

endering that portion of the rule mere surplusag e. Inthe juvenile case, the court fa ils to even c onsider w

hether t he rule has any appli ca tion in juve

nile proc eeding s. I therefor e respe ctfully dissent. This court pro mulgated Rule 711 in May 1969, “in response to the increased

interest in clin ical l egal experience which began to be felt by law students and la w faculties *** an i ncreas e d interest which fit nicely with t

he gr owing demands being placed on the judicial system by

the need to pro vide for

the representation of indigents” in the wake of Gideon v. Wainwright , 37 2 U. S. 335 , 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963 ). Il l. Ann. Stat., ch. 110A, par. 711, Historical & Practice Notes, at 592 (Smith-Hurd 1985). The court’s reference to providi ng the r ight to c ounsel for indige

nts indica tes that, incriminal ca ses, this court was aware that Rule 711 would impact the sixth ame

ndment’s right to counsel. 2 A criminal

defenda nt’s cons titutional

right to

counsel i s mul tiface ted. On the one hand, it includes the right to competent counsel. Strickland v. Washington , 466 U.S. 668 , 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). On the other hand, it allows a defendant the abilit y to partic ipate in a

nd make de cisions c oncerni ng his de fense , including the rig

ht to waive

counsel. Faretta v

. California , 422 U.S. 806, 821, 45 L. Ed. 2d 562, 574, 95 S. Ct. 2525, 2534 (1975); s ee also People v. Cox , 12 Ill. 2d

265, 270 (1957) (acknowledging that under-15- both the federal and I llinois constitutions, “an accused may likewise waive h is right to representation by one licensed to practice law”). This court has held that “coun sel” fo r purpose s of the sixth amendment

is not a mere formality ; it means that only those persons licensed under this court’s rules to pract ice law w ill be per mitted to defend a criminal defendant in our courtrooms. Cox , 12 Ill. 2d at 269. That counsel m

ust be licensed is critical. In fact, the familiar twopr onged ineffective assistance of counsel standard a nnounce d i n Strickland

was predicated on the presumption that decisions made by

anattorne y, d uly license d and admi

tted to practice under sta

te rules,

are legitimate matters of trial strategy and thus are subject to

highly deferential judicial scrutiny, fre e of the “distorting effects of hindsi ght.” Strickland , 466 U.S. a t 689, 80 L . Ed. 2d at

694, 104 S. Ct. at 2065. Rule 711 was designed, then, not only to ensure that the constitutional rights of those who receive student represe ntation are protected, but als o to avoid abu ses by them. Rele

vant her e is subsecti on (c), w

hich prov ides the f ollowing : “Under the supervision of a member of the bar of this State, and with the written consent of the person on whose behalf he/she is acting, which shall be filed in the ca se and brought to the attention of the judge or presiding officer , an eligible law student or gra duate ma y r ender th e followi

ng serv ices: *** He/She may

appear in the trial courts and administrative tribunals , subject

to the foll owing qu

alifica tions:

*** ( i) Appearances, pleadings, motions, and other documents to be filed with the court may be prepared

by the student or

graduate and may be sig

ned by him with the accompany

ing designation

‘Senior Law Student’ or ‘L aw Gra duate’ but must also be signed by the supe rv isin g member of the bar. (ii) In criminal cases, in whi ch the penalty may be imprisonme

nt, in proceedings challen g ing sentences of imprisonme

nt, and in civil or criminal contempt procee dings, the s tudent or graduate may

particip ate in-16- pretr ial, t rial, and po sttr ial pr oceedi ngs as an assistant of the supervis ing mem ber of the bar, who shall be present and resp onsible f

or the conduct of t

he proce edings. (iii) Inall other civil and criminal cases the student or grad ua te may conduct a

ll pretrial, trial, and posttrial procee dings, and

the supervising member of thebar need notbe present.” (Emphasis added.) 210 Ill. 2d R. 711(c). The plain language Rule 711 r equires specifically tha

t written consent be obtained and that it “shall” be filed in the case. The consent requirement of the rule, in conjunction with the presence of

a supervis i ng attorney, ar e the preconditions to the student’s participation

in the case. Without written consent, spread of record, and the pres ence of

the super

vising a ttorney , the stude

nt is unauthor ized to pra

ctice la w in I llinois cou

rtrooms. The consent port ion of

the rule ensures, particularly in criminal

cases where the right to

counsel i s constitut

ionally guara nteed, that a litigant knows and agrees to the proposition that someone who is not licensed to practice law will be participating in the case on

his behalf. Rule 711 allows the litigant a ch oice–he can agree to the student representation

or ref use it . It is not forced on him. The consent portion of the rule therefore serves a purpose–its requirement that writt enconsent be made a part of the recor d serves to safegua

rd s agains tlitigant s, partic

ularly criminal defendants, from later arguing

o n appeal that they did not know they were being represe

nted by studentsor

did not consent to such representation. The agree ment of

a criminal defendant that

a law student, under the direct supervision of counsel, could disc

harge some or a

ll of coun sel’s duti es would constitute a partial waiver of

the right to competent (licensed) counsel that is guara nteed by the sixth ame

ndment. F or that re ason, I would hold that the violation of the consent portion of Rule 711 require s a
newtrial since the assistance of co unsel is among those

“ ‘constitu

tional rig hts so basi c to a

fair trial that their infraction can

never be treated as harmless error.’ ” Holloway v. Arkansas , 435 U.S. 475, 489, 55 L. Ed. 2d 426, 437, 98 S. Ct. 1173, 1181 (1978), quoting Chapman v. Californ ia , 386 U.S. 18, 23, 17 L . Ed. 2d 705 , 710, 87 S. Ct. 824, 827-28 (1967). My position is not new. Prior to the appellate court’s action here in Smith , that was the law in Illinois. For example, in In re Moo re , 633 The court mischaracteriz es Moore by imply ing tha t the ap pellate court’sholdin

g was groun ded upon the la

ck of superv

is ion by a l icensed attor ney. Slip op. at 11. The focus of the court’s ho lding in Moore was on the lack of consent and the lack of kn owledge on the part of the trial judge.

-17- Ill. App. 3d 899 (1978), a new trial was ordered b ecaus e the record failed to disclose

any aff irmative signal that either the respondent or the trial ju dge wa s aware of the law student’s 711 status. The appella te court specifically

emphasized that “[n]o written consent formby respondent a

ppear[ed] inthe record.” Moore , 63 Ill. App. 3d at 904. 3 In People v. Sc hl aiss , 174 Ill. App. 3d 78 (1988), the court reversed the defe ndant’s c onviction

because he had not conse nted to representation

by a law student

and ther e was insu

fficien t evidenc e in the record to show that the defendant even knew he was be ing represented by

a law student. Inote, too, that courts from other jurisdictions have also held that lack of co nsent is grounds for reversal. For e xample in People v. Miller , 89 Cal. App. 3d Supp. 14, 152 Cal. Rptr. 707 (197 9), the Californ ia Court of A

ppeals or dered a new tria l becaus e the record contained no written consent from the defendant allowing a la w studentto discharg e the dutie s that a lic ensed at torney would normally d o during the trial. The court specifically noted that allowing a lawstudent to take over various portions of the trialwas, ineffect, a

partial waiver of the defendant’s sixth amendment rig

ht to counsel. Similarly, in In re C.B. , 546 So. 2d 447 (Fla. App. 1989), the Fl or idaCourt of Appeals reversed based on the lack of direct evide nc e that the respondent had consented to the representa tion of studentintern. Although the State argued that the intern had informed the responde

nt of her student sta

tu s, the court found that to be “no substitute” for

proof in writing of actual consent to the representation. C.B. , 546 So. 2d at 448. See also In re L.S. , 560 So. 2d 425 (Fla. App. 1990) (reversing based

on lack of

written consent without addressing whether the intern was supervis ed); In re A.R. , 554 So. 2d 640 (Fla. App. 1989) (reversing for lack of consent waiver without addressing the extent to which the intern had been supervised). Not all cases, however, require per se reversal s. Tho se cases whichhave not ordered new proceedings did so because evidenc e in the record established that the defendant was aware of the student’s4 In structuring its analysis, the m

ajority relies in large part on People v. Perez , 24 Cal. 3d 133 , 594 P.2d 1 , 155 Cal. Rptr. 176 (1979). Perez , however, is disti

nguis hable b ecause the re cord in t hat case contained a writtenconsent

form that was

signed by the defendant. Finding the consent form valid, the court placed on defendant the burden of establishing that his consent to such represen

tati on had been unk

nowing. Since the defendant could not me e t that burden, the studen t’s representation, in ligh t of being supervised

by lic ensed c ounsel, did no t viol ate the defenda nt’s rig ht to counsel

. Moreover, the court held that the defendant’s written consent was sufficient to satis fy con sti tut ional re quirem ents. I note th at the a

ppellate court in Schlaiss specifi cally disti nguis hed Perez on the basis that the Califor nia Supreme C ou rt was not faced with the lack of written consent issue. Schlaiss , 174 Ill. App. 3d at 81.

-18- status. See State v. Dwyer , 181 Wis. 2d 826, 512 N.W.2d233 (1994); Jones v. State , 902 P.2d 686 (Wyo. 1995). That is not thecase here. Infact, my re search indicates only one jurisdiction, Louisiana, which regards the abse

nce of r equired consent a s cavali erly

as the court does here today . See State v. Edwards , 351 So. 2d 500 (La. 1977). Like the court’s pronouncements that its rules are not mere sugge stions, the court is fond of say ing that its rules are the equivalent of statutes and are to be interpr eted as such . Slip op. at 7. That, of course, woul d mean th at all of Rule 711’s terms are to be given the effect of their plain, ordina

ry m eaning. So, where is the meaning given to the words “written consent”? Sure ly, w hen this court promulgated

the r ule th ere was a purpose behind the words it used. Today’s opinion omits any

refer ence as to what that purpose may be. Instead, al thoug h the cour t finds tha

t Rule 711 w as violate d in both

cases by the failure to obtain the requisite written consent, that does notend its “inquiry.” Slip op. at 8. I t goes on to hold

that e ven th ough law studen ts –like thos e in these cases–w ho have n ot complie d with the re quirements of Rule 711 are “not counsel for constitutiona l purposes ” (slip op. a

t 9), the r ight to c ounsel ha s n ot been denied because a superv ising at torney is prese nt . It is the presence of the supervising attorney, ac cording to the court, that preserves the right to counse l under th e sixth amen dment. 4 I strongly

disagree. The presenc e of the s

upervisi ng attor ney has noth ing to do with whether a litigant consented to have a student pa

rticipat e in his tri al.5 I no te that s everal of our sister st

ates hav e specif ically include d juven

ile proce edings in thei

r studen t practic e rules. See, e.g. , Colo . Rev . Stat. 12–5–116.1 (2009) ; Ga. S up. Ct

. R. 91 (2009); I daho Bar Com

m’n R. 221 ; Mass. Sup. Jud. Ct. R. 3:03 (2009); Neb. Ct. R. §3–702; Ohio Ru les for the Governme

ntof the B ar R. I

I; O klaho ma Su

preme Court R . 7.7; O r. Bar Admission R. 13.10 (2009); Washing ton Supreme C ourt R. 9.

-19- Incriminal cases, the presence of the supervising attorney has nothing to do with whe

ther a de fendant

has ag reed to waive his right

to have

a licensed attor

n ey participa

te in all facets of his defense. Thus, the court has written out the co n sent provisions of Rule 711. Under today’sanalysis, a

law student and the supervising licensed attorney could work in a case, and the de fendant woul d have no say in the matter since a defendant does not have the right to choose one courtappointed attorney over

another. Clearly , criminal defe ndants wit h monetary resourc es will not

be put in th

is situatio n sin ce Rule 711 applies only to law office s of the s tate a nd its subdivisions, such as the public defender’s office, which supply appointed

counsel. Those with money will reta in and pay

a fee to licensed member of the bar. Only the indig ent, then, will face the prospect of having law stude nts unwitting ly

thrus t upo n them throu gh appointe d counse l. This lea ds, inmy view, to pote ntial problems of inequality of re presentation based up on a defe

ndants’ e conomic s tatus. Turning to th e c onsolidated matters here, in defendant Smith’s case, the viol ation o f the rule is clear . The re cord doe s not conta in Smith’s written c onsent to t he studen

t’s repr esentat i on, andthe transcript does not indicate that

the trial judge was made aware that

a 711 student was par

ti cipating in the suppression h earing . I wo uld theref ore gr ant Smith a new trial

. Respondent

Denzel W.’ s case is

more pro blematic . By

failing to address the consent portion of the rule, the court by passes the mor e fun dame ntal question o f whethe r the rule even ap plies to juv enile procee dings. Rule 711 states that eligible students may particip ate in civiland crim

in al matters. The rule

does not sp ecifica

lly r efer to juvenile proceedings, which are n eithe r crimina l nor civil procee dings. See In re W

.C. , 167 Ill. 2d 307, 326 (1995) (recog nizing that a juvenil e proceeding

is “nonadversarial and designed to furthe r the best interests of the minor”). 5-20- Assuming Rule 711 does apply to juvenile

procee dings, this court h as incorporated many

of the constitutional requirement s of a criminal trial into juvenile delinquency proc eedings, including the right to counsel. In re A.G. , 195 I ll. 2d 313, 3 19 (2001) . The rig ht to counsel, as I have p reviously explained, includes the rig ht to waive attorney repres entation . Rule 711 s tates tha t consent to the stude nt representation must be obtained from the party on whose behalf the studentwill act. How should t h e consent contemplated in Rule 711 be given in juvenile proceedings? A juvenile may notunderstand the implications of having a law student ta

ke on some

advoca te roles i n t he trial; therefore, it would seem that the juvenile’s par ent o r guardian would need to be the one to give the requisite consent under the rule. Again, however, beca use t h e court summarily re nders the consent portion Rule 711 mere surplusage, it dodges the questions surrounding whethe r a juve nile can even g ive the c onsent tha t Rule 711 would r

equire i f it

is indeed applica ble to juve

nile proc eeding s. Inany eve

nt, no written consent appears in the reco rd , signed by either the resp ondent or

his pare nts, and r eversa l w ould be required on that ba sis if the r

ule is app licable i

n such pro ceeding s. Pa re nt he ti ca ll y, the cour

t’s trea tment of the juv enile ca se warr ants criticis m for

a further reason. The court states that the appellate court is to det ermi ne wheth er the “trial cou rt’s act ions *** re sulted in respondent’s receiving ineffective assistance of counsel.” Slip op. at 12. I am not sure what that means–Doe s the appe llate cou rt have t o
see if the trial court’s action violated Strickland? If so, how? By not allowing th e s up er vi si ng at to rn ey to tak e over the redirect examination of Tequila, the trial court effectively

denied respondent the benefit of the supervising attorney ’s expertise, a benefit that Rule 711 clearly

contempl ates will n

ot be deni ed even

though a stu den t may be assisting in the case. By not letting the s upervisin g attorney actually “supervise” the student, the trial court violated Rule 711 and denied responde nt his right to competent, licensed counsel during the trial proceedings. Neither the respondent nor his licensed attorney violated Rule 711 so the burden of establishing a Strickland violation should not be placed upon him on appeal. There is no re ason for a remand u nder suc h circum stances

. Fi na ll y, I tak

e issue wi th two othe

r aspec ts of the court’s decision to da y. First, there is the court’s referenc es to the supervising attorney-21- as a kind of filter that prevents the 711 student from making m

istakes. It is not always possible to glea n fr om the tra

nscripts t he extent to wh ich a superv

ising at torney can con trol the st

udent’s words a

n d actions. The tran script in t he juveni le case

reflects that

even when a supervising attorne

y w ants to take control, he might not be able to do

so. More imp o rtantly, the immediate pre sence of an experienced, supervising attorney ca

nnot always pre

vent or undue the harm caused by the un skil led st udent assis tant, such a s fail ing t o la y the proper foundationfor

impeach ment, asking a

n overbr oad ques tion on cr

ossexamination, or

clumsily handling the dire ct examination of a hostile

or difficul twitness. Applying the Strickland standar d, with itsstrong presumption in favor

of compe tence, w ill not alway

s provide relief i n suchcircumstances. As the dissenting justice in Perez note d, ther e “may be but one moment of t i me in the course of a trial when the right act, wor d or deci sion can b e made a nd the ca se won. *** If that

mom ent of opportunity passes, no amount of post-ve rdict advice t o
or critique of the law student’s performance will give s olace to a defendant in prison.” Perez , 24 Cal. 3d at 151 , 594 P.2d at 12, 155 Cal. Rptr. at 187 (Mosk, J., dissenting). Second, there is the court’s reference s to the educati onal wor thof Rule 711 for law students. Slip op. at 7, 12. I understand this worth, butit has abs olutely

no bearing on this case. The only rele vant inquiry is whether S mith and Denzel consented to the student’s representation, not what educational opp ortunit y is offere d by that representation.

JUSTICE BURKE jo ins in this di ssent.