ILLINOIS OFFICIAL REPORTS

Supreme Court

People v. Austin M., 2012 IL 111194

Caption in Supreme

Court:

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. AUSTIN

M., a Minor, Appellant.

 

Docket No. 111194

Filed August 30, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In delinquency proceedings, there is a per se conflict of interest calling

for reversal if a minor’s attorney functions simultaneously as defense

counsel and guardian ad litem; and a misdemeanor adjudication for

criminal sexual abuse was reversed where the facts in the record showed

that retained defense counsel had so functioned, even though he was

never appointed as guardian.

Decision Under 

Review

Appeal from the Appellate Court for the Fourth District; heard in that

court on appeal from the Circuit Court of Ford County, the Hon. Stephen

R. Pacey, Judge, presiding.

Judgment Judgments reversed.

Cause remanded.
Counsel on

Appeal

Michael J. Pelletier, State Appellate Defender, Karen Munoz, Deputy

Defender, and Jacqueline L. Bullard,Assistant Appellate Defender, of the

Office of the State Appellate Defender, of Springfield, for appellant.

Lisa Madigan, Attorney General, of Springfield, and Matthew Fitton,

State’s Attorney, of Paxton (Michael A. Scodro, Solicitor General, and

Michael M. Glick and Erin M. O’Connell, Assistant Attorneys General,

of Chicago, of counsel), for the People.

Cathryn Crawford, of Chicago, for amicus curiae Children and Family

Justice Center.

Marsha Levik, Riya Saha Shah and Tiffany Price, of Philadelphia,

Pennsylvania, for amicus curiae Juvenile Law Center.

Bruce A. Boyer, of Chicago, for amicus curiae Loyola Civitas ChildLaw

Center.

Mary Ann Scali and Nadia Seeratan, of Washington, D.C., for amicus

curiae National Juvenile Defender Center.

Justices JUSTICE BURKE delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Garman and Theis concurred in the

judgment and opinion.

Justice Freeman concurred in part and dissented in part, with opinion.

Justice Karmeier concurred in part and dissented in part, with opinion.

Justice Thomas dissented, with opinion.

OPINION

¶ 1 Austin M. was adjudicated a delinquent minor after he was found guilty of the offense

of criminal sexual abuse (720 ILCS 5/12-15 (West 2006) (now 720 ILCS 5/11-1.50(b))).

Austin appealed his adjudication and the appellate court affirmed, with one justice

dissenting. 403 Ill. App. 3d 667.

¶ 2 We granted Austin’s petition for leave to appeal. Before this court, Austin raises four

issues: (1) whether the legal representation he received at his delinquency trial amounted to

a denial of his right to counsel as guaranteed by the Juvenile Court Act and by the due

-2-
process clauses of the United States and Illinois constitutions; (2) whether he received

ineffective assistance of counsel because his attorney labored under a per se and/or actual

conflict of interest; (3) whether he received ineffective assistance of counsel because of

certain acts and omissions by his attorney; and (4) whether he was proved guilty beyond a

reasonable doubt.

¶ 3 For reasons that follow, we reverse the judgments of the courts below.

¶ 4 I. Background

¶ 5 In August 2006, Ford County State’s Attorney Anthony Lee filed delinquency petitions

against Ricky M., age 15, and Austin M., age 16, charging them with misdemeanor criminal

sexual abuse. It was alleged in the petitions that between July 14, 2005, and July 14, 2006,

Ricky and Austin had engaged in acts of fellatio and had fondled the sex organs of each other

and two boys, Dillon L., age 10, and Jonathon L., age 12, who had been foster children 1

living in the M. family foster home. Ricky and Austin were tried at a joint delinquency trial,

which commenced on January 19, 2007, and was continued to April 3, 2007. The boys’

parents, James (Jim) and Rebecca (Becky) M., hired an attorney to represent both Ricky and

Austin at trial.

¶ 6 At a September 25, 2006, pretrial hearing, the court inquired whether the attorney whom

Mr. and Mrs. M. had hired was appearing on behalf of the boys as well as the parents. The

attorney replied, “I think the minors, Judge.” The court then admonished Mr. and Mrs. M.

as follows:

“At this point, [the attorney] is entering an appearance for your sons only. So, he

represents them and does not represent you. He represents what’s in the best interest

of these Minors, which may or may not be what the Minors or the parents think is in

their best interest.”

¶ 7 The court also admonished the parents that, if the allegations in the delinquency petitions

against their sons were proven beyond a reasonable doubt, the boys could be placed on

probation, removed from the home and placed in a public or private facility, or committed

to the Illinois Department of Juvenile Corrections. The court then asked:

“Any questions regarding the basic rights of these proceedings, Mr. and Mrs. [M.]?”

¶ 8 Trial began on January 19, 2007. At the outset of trial, the boys’ attorney made a

statement to the court, explaining his reasons for simultaneously representing both

respondents. He also informed the court of his decision to permit the State to present

videotaped statements of the alleged victims, Jonathon and Dillon, and a third foster child,

Willie C., age 5, in lieu of live courtroom testimony. He stated:

“I have procedural points—I agreed to proceeding, and I think in a unique, at

least, a new way in one respect or two respects—and I wanted to explain my

Throughout the record, the alleged victim is identified as D.L. or “Dylan.” However, when 1

D.L. was videotaped, he was asked to spell his name and he spelled it “D-I-L-L-O-N.” Therefore,

this spelling will be used here.

-3-
decisions on the record and explain why I believe that’s in my client’s [sic] best

interest.

THE COURT: That’s fine.

[DefenseCounsel]: Yeah, I had, Judge. Ifirst of all have agreed with Mr. Lee [the

prosecutor] to proceed. We have three witnesses that are children; Willie [C.],

Jonathon [L.] and Dillon [L.], and I have agreed with Mr. Lee that I am going to not

oppose their testimony by way of video tape, Judge, a couple video tapes made in

July, and one made in October I believe.

I am comfortable doing that in this case. Isay that there—I want to make it clear;

my clients have consistently denied the allegations that are being made by these

complaints and to the extent—with one exception. There was a claim on the

admission on the part of Austin, which we dispute, but they have denied this. This

is a contested hearing.

Nevertheless, this is a juvenile hearing. I have talked this over pretty carefully

with my clients, as well as with their parents, and I been [sic] a lawyer for nearly 30

years, and I am comfortable with this in this case because we want to know the truth

is ultimately the view of the parents. If something along the nature of these

allegations, which are acts of sexual penetration involving children here, but my

clients are 15 and 16 years old and the victims are 10 and 12 years old at the time.

And I think our, at that time, attitude is we have grave doubts these things occurred.

The boys deny they occurred, but Ithink the parents and I agree—Ithink with Mr.

Lee as well—that if such acts happened, then it needs to stop. An intervention is not

inappropriate by way of government to help these boys if such things happened. You

know, so. We are on the same page, and we don’t want to cause trauma to anybody.

I have a duty to these two boys, nobody else. But we are, we are not—we are seeking

the truth this here [sic] the same as the Court and the same as the prosecutor is our

position. And I am comfortable with proceeding by way of the video tape as opposed

to requiring these young children to come into Court at this hearing, and obviously

there is pluses and minuses, I suppose, for both sides. We are giving up our right to

confront these witnesses in Court.

THE COURT: I assume, that’s the case. There is no cross-examination by you.

[Defense Counsel]: No, there won’t be. And we dispute their allegations.

THE COURT: I understand.

[Defense Counsel]: And on the other hand, Mr. Lee is giving up the ability to

have live testimony which tends to be more persuasive than video tape. Bottomline,

I am comfortable with it. The other decision that I made here, Judge, that I want

everybody to be clear on, and I want to explain, is I am representing two clients here,

and ordinarily, if this were an adult case—I cannot imagine—it is extremely rare I

would contest a hearing attempting to represent two individual clients that deserve

the benefit of individual representation, separate consideration, and the allegations

are kind of—they are pretty widespread.

-4-
We are talking about a year’s period of time and talking about different possible

alleged acts of different kinds. Nevertheless, I think in a juvenile hearing where it is

a misdemeanor allegation, where it is a judge proceeding as opposed to a jury

proceeding, I am fully capable of handling this, and where I believe the—I don’t view

such a proceeding as adversarial as it might be if it were an adult case.

I view this as a truth-seeking process on all parts. I explained this to the parents,

I think they are comfortable with me being a lawyer for both kids. They agree it is in

the best interest and beneficial to everybody that I continue to represent both, but I

wanted to say that on the record, Judge.

Now, if the Court or prosecutor has any problem with me doing that, you know,

I am ready to hear thoughts. I am comfortable with being a lawyer for both and

comfortable with proceeding with the testimony by way of video tape. Thank You.”

¶ 9 The boys’ attorney also informed the court that, in exchange for permitting the

prosecution to present videotaped statements of the three foster children, the State had agreed

to ask for a sentence of probation rather than commitment to the Department of Juvenile

Justice, in the event that the boys be found guilty. The court asked Jim and Becky M. if they

understood this compromise, but did not consult Austin or Ricky.

¶ 10 The matter then proceeded to trial. The State presented two live witnesses, Sergeant

Robert Yates, a police officer in the Paxton police department, and Sheree Foley, a child

protective investigator with the Department of Children and Family Services (DCFS) in

Urbana, Illinois. The only other evidence presented was the videotapes of Sheree Foley’s

interviews of Dillon, Jonathon and Willie.

¶ 11 The first witness was Sergeant Yates, who testified that he became involved in this case

when Sheree Foley, a DCFS worker, came to the Paxton police station on July 14, 2006, and

informed him of her investigation into a report of sexual abuse. Yates said he and another

officer, Captain Cornett, accompanied Foley to the foster home where the abuse allegedly

took place. Foley removed two foster children who were living there, Jonathon L., age 12,

and Willie C., age 5, and brought them to the Paxton police station. Yates testified that, after

Foley interviewed Jonathon and Willie, the Paxton police department contacted Jim and

Becky M., who then brought their sons, Austin and Ricky, to the police station for

questioning.

¶ 12 Yates also testified that he was present when Paxton Police Chief Robert Bane

questioned Austin and Ricky individually. Yates recalled that Ricky was interviewed first

and that Chief Bane told Ricky that he was being accused of “inappropriate behavior,”

“inappropriate touching,” and “coercing others to perform oral sex.” Yates said that Ricky

appeared extremely nervous, but denied any wrongdoing.2

¶ 13 Yates further testified that when Chief Bane questioned Austin, Austin was first asked

to sign a form indicating that he had been advised of his Miranda rights and that Austin’s

Yates testified that the interviews with Austin and Ricky were tape-recorded, but no 2

recordings were introduced at trial.

-5-
father, Jim M., who was present during both interviews, signed the same form as a witness.

Thereafter, Chief Bane advised Austin, as he had with Ricky, that he was being accused of

“inappropriate touching” and “performing oral sex.” Yates testified that Austin, like Ricky,

denied doing these things. However, he said that Chief Bane continued to ask Austin the

same questions over and over again in a way that made it clear that he did not believe that

Austin was telling the truth. In response to this repeated questioning, Austin said he let

Dillon “suck his dick.” Yates said Austin’s father immediately interrupted, stating that they

wanted to speak to a lawyer and Austin’s interview was then concluded.

¶ 14 Defense counsel made no objections to any of Yates’ direct testimony. However, on

cross-examination the following colloquy took place:

“[Defense Counsel]: You wrote a written report, you are holding that in your

hand?

[Yates] A. It’s my report, sir.

Q. Okay. I am taking it, you are kind of using that report to—

A. To recall.

Q. —to remember what happened?

A. That is correct.

Q. And that’s been a few months?

A. Yes, it has.”

¶ 15 The next witness was Sheree Foley, who testified that her involvement in this case was

initiated by a child abuse hotline report transmitted by the Vermilion County DCFS on July

14, 2006. According to this report, Dillon L., age 10, who had been a foster child in the M.

foster home from August 2005 through June 2006, alleged that he had been sexually abused

on several occasions while he was living there. The alleged perpetrators of the abuse were

Ricky M. and Austin M., the foster parents’ sons.

¶ 16 Foley testified that, although Dillon was no longer living in the M. foster home, she

decided to visit the foster home the same evening she received the report because two other

foster children—Jonathon L. and Willie C.—were living in the home. Foleysaid she notified

the Paxton police department of her investigation and two Paxton police officers

accompanied her to the foster home. Foley removed Jonathon and Willie from the foster

home and transported them to the Paxton police station, where she then interviewed the two

boys.

¶ 17 When asked about that interview, Foley, without any objection by defense counsel,

stated:

“I interviewed both boys, and I got enough information to know that these

children needed to be interviewed at the CAC due to the allegations and the type of

allegations we did not want to go on interviewing them in the police station. So at

that time when we had information from the boys that sexual abuse had—sexual

abuse did occurin the home, that [sic] Paxton PD brought in the two boys, older boys

to interview them, Ricky and Austin.”

¶ 18 At about 10 p.m. on July 14, 2006, Jim and BeckyM. arrived at the Paxton police station

-6-
with Ricky and Austin, who were then questioned by Paxton Police Chief Robert Bane.

Foley testified that she was present during the questioning of the boys. She stated that Ricky

denied the accusations, but that Austin stated he allowed Dillon to “suck his dick.” Foley 3

testified that, after Austin made this statement, Mr. M. said they would like an attorney and

the interview was terminated.

¶ 19 Foley also testified that the following morning, July 15, 2006, she conducted videotaped

interviews with Willie and Dillon at the Child AdvocacyCenter (CAC) in Urbana. Jonathon

was not reinterviewed at that time because Foley did not feel he was ready to disclose any

information. Instead, Jonathon was interviewed three months later, when he was brought to

the CAC as part of a new and unrelated sex abuse investigation.

¶ 20 On cross-examination, Foley admitted that Dillon was initially placed in foster care

because he had been the victim of sexual abuse while living with his mother. Foley also

admitted that between May and June 2006 Dillon had made two unfounded reports of child

abuse (not sexual abuse) against Jim and Becky. Dillon was removed from the M. foster

home in June 2006 and placed with his grandmother. While staying with his grandmother,

Dillon began to “act out” sexually and was found making inappropriate sexual advances

toward a young cousin. When the grandmother talked to Dillon about his behavior, he made

the accusations of sexual abuse at the M. foster home.

¶ 21 Defense counsel asked Foley why she did not interview Jonathon at the CAC until

October 2006. Foley explained that when she interviewed Jonathon on July 14, 2006, he told

her that the only inappropriate or sexual touching he had observed while staying at the foster

home was between Dillon and Willie. Jonathon also said that Dillon had repeatedly tried to

touch him, Ricky, and Austin, but they all refused Dillon’s advances. Despite these

revelations, Foley described Jonathon as “very closed” and stated that, based on her

observations of Jonathon’s “body language,” she did not believe Jonathon would tell her

anything more. For this reason, she did not have him brought to the CAC the next day. In

October 2006, however, Jonathon was brought to the CAC for an investigation of another,

unrelated sexual abuse incident. Foley said she used this opportunity to question Jonathon

about this case.

¶ 22 Defense counsel also questioned Foley about her observations at the time Austin was

interviewed at the Paxton police station on July 14, 2006. The following colloquytook place:

“Q. What did he say to your recollection?

A. He talked about, you know, one of the boys in the home; he allowed him to

suck his dick.

Q. All right. Well, the reason I am asking it this way is that you phrase it in your

Prosecutor Lee asked leading questions throughout his examination of Sheree Foley. 3

Further, when asked about Austin’s interview by Chief Bane, Foley could not remember whom

Austin allegedly abused without looking at her notes. Foley was permitted to review her notes, after

which the prosecutor stated, “All right. We will need to get a copy of whatever page you refer to,

as well as we need to get a copy of Officer Yates’ police report to be marked as refreshed

recollection.” No objection was made by defense counsel.

-7-
report is [sic] you say on page 37, you say he began to talk about Dylan [sic]

performing sucking his dick, and Mr. [M.] is concerned and the interview stopped;

is that true?

A. That’s true.

Q. I am curious about the phrase he began to talk about Dylan [sic]. I mean, you

don’t say he said it. You say he began to talk about it.

A. He started to talk about it.

Q. Okay. All right. And it sounds like he was cut off.

A. He was.”

¶ 23 After Foley testified, the court viewed the videotapes of Sheree Foley’s interviews with 4

Willie and Dillon, which took place at the CAC on July 15, 2006, as well as the videotape

of Sheree Foley’s interview with Jonathon, which took place at the CAC in October 2006.

¶ 24 The videotape of Dillon’s interview shows that Foley spoke with him for approximately

27 minutes. Foley first asked Dillon to tell her about the M. foster home and Dillon began

by stating that Austin and Ricky, as well as two of Jim and Becky’s other children, Abby and

Jennifer, were “mean” to him and “called him names.” Dillon then claimed that he witnessed

Austin and Ricky “humping” Jennifer and Abby. Dillon also said that Austin and Ricky

forced him to “suck their dicks” and that they carried knives and threatened to kill him if he

did not do what they said. However, Dillon’s main focus was on Austin and Ricky’s alleged

behavior with their sisters, which he described as “sick.”

¶ 25 In the course of the interview, Dillon often contradicted himself. For example, Dillon

first stated that he never saw Austin or Ricky forcing anyone else to “suck their dick,” but

later said it happened to Jonathon. Also, Dillon first said that Becky never hit him, but later

said that Becky hit him “everywhere” and that this happened “all the time.” His excuse for

not telling Jim and Becky anything about the sexual abuse by Austin and Ricky was “they

didn’t care.”

¶ 26 The videotape shows that, during the interview, Dillon became fascinated by some

anatomically correct dolls that he found in a bag in the interview room. He spent a good deal

of time undressing the dolls and playing with them to describe what he claimed Austin and

Ricky were doing to their sisters and to him and Jonathon.

¶ 27 The second videotape showed Foley’s July 15, 2006, interview with Willie at the CAC,

which lasted just over 20 minutes. It is clear from the videotape that Willie, who was five

years old, was very restless. He yawned and stretched and was distracted by a juice box he

was drinking. He also expressed frustration with the questions and at one point said, “No,

I’m done talking.” He claimed that he saw Austin touch Ricky’s “wiener” but said this

happened in their bedroom and that he was sleeping in his own bedroom when he saw this.

Since Willie’s room was on a different floor from Austin and Ricky’s room, this would have

been impossible.

¶ 28 Willie also told a fantastic story about Austin and Ricky hitting people “in their butts”

The videotapes have been made a part of the record in this case.

4

-8-
with a shovel. Willie said the police arrived and took people to the doctor because

“somebody got killed.” Willie also claimed the family dog, Maggie, licked Dillon’s “bootie”

and said this also happened to “Tucker” (who apparently is another dog). Willie said he never

saw Jennifer or Abby naked, but that Chris (an older son of Jim and Becky M.) pulled down

his pants and showed him his private part. Finally, Willie said that no one touched him, but

if anyone had tried to touch his private parts he would have told Becky.

¶ 29 The last videotape was the recording of Foley’s interview of Jonathon at the CAC on

October 27, 2006, which lasted about 20 minutes. When asked about the M. foster home,

Jonathon’s first response was, “I don’t know if you know this, but Dillon was sexual at

Becky’s.”

¶ 30 At first, Jonathon said he neversaw anything and did not remember anything. However,

after much prompting from Foley, he stated that Ricky would make Dillon suck his private

part. Jonathon said Ricky and Austin asked him to suck their private parts, but he refused and

no one made him do it. Jonathon also said that he saw nothing of a sexual nature with regard

to Willie, Jennifer, Abby, or Chris. However, he later stated he saw Austin touch Jennifer

over her clothes, but that Jennifer got mad and “smacked” him.

¶ 31 Jonathon said that Dillon often complained about getting hit, but that Dillon would hit

Willie. Jonathon also said that Dillon did not listen and that he stole things a lot. When asked

if there were problems at the M. foster home, Jonathon said that Ricky had “anger problems”

and “when he didn’t take his medication he would hit people.” Jonathon also said Austin had

anger problems and “touching problems.” He said that Austin carried a pocket knife and

scared him with it. Also, he said that “every day” Austin wanted Dillon or Jonathon in his

room and tried to put his “thing” in their butts, but they refused.

¶ 32 After the videotapes were played, the State rested. The defense then called Ricky and

Austin’s siblings, Anthony, 22, and Abby, 20, as witnesses. After they established that they

had been living in the M. home during all or part of the time that Dillon and Jonathon were

foster children there, Anthony and Abby testified that they never saw anything of a sexual

nature going on between the foster children and Austin and Ricky. After their testimony, the

matter was continued.

¶ 33 Trial resumed more than two months later, on April 3, 2007. On this date, the defense

continued with testimony from Jim and Becky M., Austin and Ricky’s parents.

¶ 34 Becky testified first. She said that she had been married to Jim for 29 years and that they

had eight children—three biological children and five adopted children. The three biological

children were Anthony, 22 (who had testified earlier), Nicholas, 27, and Sarah, 25. The

adopted children were Chris, 20, Abby, 18, and Austin, 16 (who are biological siblings), as

well as Jennifer, 18, and Ricky, 15. Austin was adopted when he was only five weeks old;

Ricky was adopted when he was 15 months old. Becky also testified that she has worked

outside the home as a teacher’s aide since 1993.

¶ 35 After the preliminary questions, defense counsel asked Becky about the allegations

against Austin and Ricky:

“[Defense counsel] Q. Fair to say that you disapprove of sex among children?

[Becky] A. Yes.

-9-
Q. Be fair to say that—let me ask you this. These are your adopted kids, Ricky

and Austin?

A. Yes.

Q. You love them?

A. Yes.

Q. You want the best for them?

A. Yes.

Q. These allegations cause you concern, do they not?

A. Yes.

Q. Would you participate in a coverup of such activity to try to prevent the truth

from coming out?

A. No.

Q. You don’t believe these allegations are true; is that right?

A. No.

Q. But you’re concerned?

A. Yes.

Q. You can’t be with your kids every minute of the day, can you?

A. No.

Q. And things can happen outside your knowledge?

A. Yes.

Q. Is that right? When you heard these allegations, did you talk to Austin about

it?

A. Yes.

Q. How often did you talk to him?

A. I probably did it quite often because I was getting mad because I was trying

to use anything, you know, tell the truth, we can get help, you know, you can’t lie

about this. I did it many, many times or tried to trick him saying, you know

something but they always stuck to this has never happened.”

¶ 36 Becky was also questioned at length about several photographs she had taken which

depicted the layout of the second floor of the family home. Becky testified that the door to

the bedroom used by the foster children could not be closed because it was partially off its

hinges. In answer to questions posed by defense counsel, Becky also established: that

Jonathon had come to their foster home in 2004, that there had been no allegations of sexual

abuse prior to Dillon’s arrival, that Austin and Ricky were not allowed to babysit for the

foster children, and that Austin and Ricky did not carry pocket knives because Ricky had

once used a knife to vandalize a school bus.

¶ 37 Becky was then asked if she ever suspected any sexual activity between any of the boys.

Becky stated that she did have some suspicion regarding Dillon and Jonathon. Becky

explained that Jonathon had complained about Dillon bothering him while he was getting

-10-
dressed. For this reason, Becky had Dillon come downstairs in the morning to dress. Becky

also testified that Dillon had been difficult to control and needed special supervision. Becky

noted that, soon after Dillon arrived, she took him to a counseling session. After the session,

while she was talking to the counselor, Dillon was supposed to wait in the waiting room, but

instead left the building. She and the counselor later found him in her van, naked. Also, a

short time after Dillon came to her home, she found Dillon and Jonathon together in

Jonathon’s bed. From then on, throughout the time that Dillon was in her home, she required

Dillon to stay downstairs with her until he started to get sleepy. Becky said this was

necessary because Dillon did not fall asleep easily and she did not want him upstairs

disturbing the other boys.

¶ 38 Becky also noted that Dillon had a problem stealing things at school, at home, and in the

community. She said if Dillon was unsupervised he would go into people’s rooms and steal

things. For this reason, Dillon was not allowed upstairs during the day.

¶ 39 On cross-examination, the prosecutor asked Becky about some “bad acts” by Austin

when he was six years old and alluded to some recent accusations of improper touching by

Austin. The prosecutor also asked Becky a number of questions about Austin’s alleged

admission at the police station, even though Becky explained that she had not been present.

The following colloquy between the prosecutor and Becky took place:

“Q. Did Jim tell you about Austin starting to make that disclosure?

A. No.

Q. Did you become aware that Austin started disclosing what was going on

between he and Dylan [sic]?

A. When I got the police report and I filled in all the numbers with which child,

that’s when I read it.

Q. When you were trying to get the truth out of Austin, did you ask him about

that statement?

A. Yes, I did.

Q. Did you allow him to complete his story about what was going on there?

A. Yeah.

Q. Do you believe Austin wasn’t telling the truth about allowing Dylan to suck

his penis?

A. No. Austin didn’t have much to do with him. He had other friends.

Q. So you believe Austin wasn’t telling the truth about that?

A. That he didn’t do it?

Q. His statement to the police that he did do it and was engaged in doing it with

Dylan [sic]?

A. And I asked him and he said he never said that.

Q. Did you have any discussions with your husband about cutting off the

questions when Austin started disclosing about the sexual conduct between he and

Dylan [sic]? Did you ask your husband why he cut that off?

-11-
A. Because they were kind of getting nasty and saying you’re a liar.”

¶ 40 Until now, defense counsel did not object to any of the prosecutor’s questions. At this

point, defense counsel made an objection based on hearsay, which the court overruled. The

questioning then continued:

“Q. So it’s your understanding from your husband that he cut it off because it was

getting nasty?

A. They were kind of bullying him. He was only sixteen.

Q. You used the word, nasty. Is that what you and Jim discussed?

A. Yes—

THE COURT: Next question, Mr. Lee. This question has been asked and

answered. She’s answered your question.”

¶ 41 The prosecutor also asked Becky if she remembered telling Sheree Foley, on July 14,

2006, that Jonathon had previously been a victim of sexual abuse and that he “allowed it to 5

happen.” The following colloquy took place:

“Q. Do you recall making a statement to Sheree Foley to the effect that Jonathon

allowed it to happen to him; do you recall making that statement?

A. No.

Q. You felt it was significant that Jonathon had previously been sexually abused;

is that correct?

A. Did I feel what?

Q. You felt it was significant that Jonathon had been sexually abused prior to

these allegations involving your home, correct?

A. Significant to what?

Q. You felt it was important to make the DCFS people aware that Jonathon had

been previously abused, correct?

A. I suppose I did.

Q. And you also felt the same way with regard to Dylan [sic], that it was

important that Dylan [sic] had been sexually abused prior to what was alleged to have

happened in your home, correct?

A. Yeah.”

¶ 42 Becky was then asked if she knew anything about Willie’s background and she indicated

that she did not know much about that. Still, the prosecutor continued:

“Q. Well you certainly had some knowledge or information with regard to

Jonathon and Dylan [sic] and their history, but you are claiming you didn’t have

knowledge or information with regard to Willie’s history?

A. Jonathon’s came out a year after we had him. All of a sudden an investigator

Thisline of questioning was prompted by testimony that had been provided by Sheree Foley 5

on direct examination, without objection by defense counsel.

-12-
came to our house and—

Q. It’s a pretty straightforward question.

THE COURT: Mr. Lee, she’s answering your question.”

¶ 43 Becky continued to try to answer the prosecutor’s questions to the best of her ability, yet

the prosecutor persisted on asking Becky questions about Willie, about which she had no

knowledge. Defense counsel never objected to any of the above questions, but when the

prosecutor—on two more occasions—asked the court to admonish Becky to answer his

questions with regard to Willie, the court replied: “That’s responsive. Next question.” And

later, “I’m not sure why the question is necessary.” Finally, after the second admonishment

by the court, defense counsel lodged an objection without stating any grounds. The court

never ruled on the objection but told the prosecutor to move on to another question.

¶ 44 On redirect, defense counsel asked Becky about Willie’s videotaped testimony and what

he said about another older son, Chris. The prosecutor immediately objected to the question.

Defense counsel then tried to explain his rationale for asking the question when the court

interjected:

“THE COURT: She said she doesn’t believe the allegations. I’m not sure it’s

appropriate to have her comment on the testimony of the other witnesses. She’s

already said she disagrees with it.

[Defense Counsel]: Okay, thanks. I understand the court’s ruling.”

¶ 45 The court repeated that it understood Becky’s position, so defense counsel opted to ask

no further questions of the witness.

¶ 46 The last witness was Jim M., Austin and Ricky’s father. He testified that he was 61 years

old, a college graduate, and that he worked full time as a file librarian in the X-ray room of

the Carle Hospital.

¶ 47 When questioning Jim about the allegations against Austin and Ricky, defense counsel

asked:

“Q. You love your kids as well as your wife?

A. Yes, I do.

Q. And you want what’s best?

A. Pardon me?

Q. You want what’s best for your kids?

A. Yes, I do.

Q. You don’t approve of child sex between children, do you?

A. No.

Q. And you would want to know if there was oral or anal sex involving Ricky and

Austin and either Jonathan or Dylan [sic] or anyone; is that right?

A. Yes.

Q. And you would accept the government’s help in trying to deal with issues like

that if you believed that had happened?

-13-
A. Yes, I would.

Q. You understand that at this point we are dealing with misdemeanor juvenile

delinquency allegations in this case?

A. Yes.

Q. But should this type of behavior persist among boys after they turn the age of

seventeen it becomes an adult criminal problem?

A. Yes, I understand that.

Q. In other words, you understand the seriousness potential seriousness [sic] of

such behavior?

A. Yes, I do.

Q. And the importance of dealing with it if such should have occurred?

A. Yes.

Q. Fair to say you have grave doubts or you are concerned that this did not

happen, these allegations are not true, fair to say?”

¶ 48 Jim agreed that he did not believe the allegations against his sons. Defense counsel then

asked Jim about Austin’s police interview, stating: “And I believe your recollection of how

that took place is a little different than what the testimony has been up to this point?” Jim

agreed and then described the interview as follows:

“We went into the interview room. I was asked—Austin was asked to sign a form

that was basically his Miranda rights. Then they started to ask him about knowing

any inappropriate sexual behavior that went on in the house, and he said he didn’t

know. They asked him that question several times, and he responded negatively. I

can’t remember the name of the officer. He was sitting across from Austin. He asked

him if Dillon ever performed oral sex—or yeah, if Dillon ever performed oral sex on

him. He did not respond. Then Captain Bane, who was standing in the corner of the

room yelled at him, did Dillon perform oral sex on you, and he still didn’t respond,

and at that point I thought that was abusive, and I asked that the interview end.

Captain Bane kept talking, so I could see that the interview was not ending. At that

point, I asked that we—I stated we needed a lawyer, and then the interview ended.”

¶ 49 Counsel then asked Jim whether he ever heard Austin begin to say that he allowed oral

sex to be performed on him by Dillon. Jim responded, “No.”

¶ 50 After Jim testified, Austin and Ricky, on advice of counsel, told the court that they had

decided not to testify. The defense then rested.

¶ 51 In rebuttal, the prosecution recalled ShereeFoley. She testified, once again, that she heard

Austin say he allowed Dillon to “suck his dick” before James ended the interview with the

police. On cross-examination, however, Foley admitted that there was no available tape

recording of the interview and she had no clear independent recollection of it since it took

place nearly a year before. She said she based her testimony on her notes, which she prepared

shortly after the interview. But she also admitted that her notes on this matter consisted of

a single sentence. Further, Foley admitted that Chief Bane had been “very loud and very

aggressive” when questioning Austin.

-14-
¶ 52 After Foley testified in rebuttal, the court listened to closing arguments. The prosecutor

made forceful arguments, stressing the consistencies in the three foster children’s videotaped

statements. The prosecutor also implied that Jim and Becky were aware of Austin and

Ricky’s behavior and suggested that it was a “red flag” that the parents had “segregated”

Austin and Ricky in the attic bedroom.

¶ 53 Defense counsel then began his argument, stating:

“I guess it’s kind of almost impossible to keep this from sounding like an

adversarial criminal proceeding just like an adult trial, and in the heat of the moment,

the prosecutor tries to portray his case in the best light possible, the defense lawyer

does the same. There is certainly some similarities to a trial and that is—but I think

there are some differences here. I think I’d like to keep our attention—I believe that

we all have the same ultimate goal in mind, and that is the best interests of these kids.

The parents have both testified that their values are values that prohibit this type

of child sexual behavior. Theyare opposed to it in the strongest possible terms. If this

is happening, they want it known and they want their kids to get help so it doesn’t

happen again. That’s what theyhave testified to, and theydeserve credibilityon that.”

¶ 54 Defense counsel continued to extol the virtues of the parents and their three biological

children, noting that “they’re not in favor of raising kids the wrong way.” Defense counsel

then continued, stating:

“Sure we all get caught up, but ultimately they want what is best for Ricky and

Austin. They understand that this kind of behavior, if it occurred, is wrong; it’s

against the rules; it’s against the law; it is—it’s unwholesome; it’s unhealthy, and it’s

going to lead to a bad end if it occurred. And they don’t think it happened. They have

questioned the kids over and over again.”

¶ 55 Defense counsel encouraged the court, as trier of fact, to do “the right thing” and “urge[d]

the Court that not guilty is the right finding,” but conceded that “[i]t’s a tough case.” Defense

counsel also reiterated much of what was said by the three foster children in their videotapes,

pointing out some of the more ludicrous stories and inconsistencies. However, no argument

was made with regard to Austin’s alleged statement to the police—the most hotly contested

aspect of the case.

¶ 56 Following closing argument, the case was taken under advisement. The court did not

enter its ruling on the matter until August 28, 2007—nearly five months after the close of

trial. In a written adjudication order, the court apologized for the delay, but explained that

it had “struggled evaluating the credibility” of the witnesses. The court then stated its

findings as to each of the witnesses: Willie’s testimony “lacked credibility,” Jonathon’s

testimony was “only slightlymore credible,” and Dillon’s testimonywas “also suspect.” The

court noted the contradictory evidence regarding Austin’s alleged admission, but concluded

as follows:

“This is the classic case where the State has introduced evidence sufficient to

prove that something probably happened, but absent an admission, not proof beyond

a reasonable doubt.

This is also, with respect to Austin, a case in which the respondent minor’s

-15-
admission has been proved beyond a reasonable doubt and, together with the State’s

other evidence, is sufficient to meet the State’s burden.”

¶ 57 BecauseRicky had admitted to no wrongdoing, the court denied the petition with respect

to Ricky. However, because the court found that Austin’s alleged admission was proved

beyond a reasonable doubt, the court held the delinquency petition had been proven beyond

a reasonable doubt with respect to Austin.

¶ 58 At a subsequent disposition hearing, the court heard, for the first time, that Austin had

a low IQ and struggled at school with learning disabilities. The court acknowledged Austin’s

limitations, but held that Austin, who was then 18 years old, needed to take responsibility for

his actions. In accord with the prosecution’s prior agreement, the court sentenced Austin to

24 months’ probation, along with 50 hours of public service work.

¶ 59 Austin appealed the trial court’s decision and in the appellate court raised the following

issues: (1) whether he was deprived of counsel as guaranteed by the Juvenile Court Act and

our state and federal constitutions; (2) whether he received ineffective assistance of counsel;

and (3) whether he was proved guilty beyond a reasonable doubt. The appellate court rejected

all of the claims, with one justice dissenting. Justice Appleton, in dissent, held that the

evidence did not support a finding that Austin was proved guilty beyond a reasonable doubt.

¶ 60 We granted Austin’s petition for leave to appeal in this court. In addition, we permitted

the Loyola Civitas ChildLaw Center; the Northwestern University School of Law Bluhm

Legal Clinic’s Children and Family Justice Center; the Juvenile Law Center; and the

National Juvenile Defender Center to submit a brief as Amici Curiae in support of Austin.

¶ 61 II. Analysis

¶ 62 A. Minor’s Right to Counsel in a Delinquency Trial

¶ 63 Austin’s initial claim on appeal is that the legal representation he received at his

delinquency trial amounted to a denial of his right to counsel as guaranteed by the Juvenile

Court Act and by the due process clauses of our state and federal constitutions. More

specifically, Austin contends that, as a minor tried for a criminal offense in a delinquency

proceeding, he had the right to a defense attorney, that is, an attorneywho gives his client his

undivided loyalty, who zealouslysafeguards his client’s rights and confidences, and who acts

in accordance with his client’s wishes. Austin asserts that he was deprived of this type of

counsel because his attorney, who represented both him and his brother Ricky, performed

less as a defense attorney and more as a guardian ad litem (GAL).

¶ 64 Austin contends that a GAL, unlike a defense attorney, owes a duty to the court and to

society and may disregard a minor client’s wishes if the GAL believes it is in the minor’s

best interests. Austin argues that his attorney, though not actually appointed as a GAL,

believed that to be his role and that this notion was reinforced by the trial court. Further,

Austin contends that his attorney’s “hybrid representation” deprived him of his statutory and

constitutional right to counsel and constitutes a per se conflict of interest requiring reversal

of his adjudication.

¶ 65 The State asks us to reject this claim. The State argues that Austin did not receive “hybrid

-16-
representation” because Austin’s attorney was never appointed as his GAL. The State

acknowledges that the appellate court held “[a]lthough the trial court never expressly

appointed [Austin’s attorney] as guardian ad litem, both the court and [the attorney] himself

conceived his role as that of a guardian ad litem—representing the minors’ and society’s best

interests—rather than that of a traditional defense attorney.” 403 Ill. App. 3d at 683-84.

However, the State contends this was error. The State also maintains that even if Austin’s

attorney did, in fact, function as both counsel and GAL at Austin’s delinquency trial, it is of

no moment because this type of dual representation does not constitute a per se conflict of

interest. According to the State, for hybrid representation to be reversible error, there must

be evidence of an actual conflict of interest resulting from the hybrid representation. Further,

the State argues that nothing in the record indicates that Austin’s attorney’s performance was

compromised in anywaydue to an actual conflict of interest. The State concludes that Austin

received the counsel to which he was entitled.

¶ 66 Austin’s claim requires us to decide two issues: whether “hybrid representation” is

inconsistent with the statutorily and constitutionally guaranteed right to counsel afforded

minors in delinquency proceedings, and if so, whether, under the facts of this case, Austin’s

attorney performed the dual role of defense attorney and GAL when representing Austin at

his delinquency trial even though he was not appointed as such. We consider first the nature

of the statutorily and constitutionally guaranteed right to counsel afforded minors in

delinquency proceedings. Our review as to this issue is de novo. See People ex rel. Birkett

v. Konetski, 233 Ill. 2d 185, 201 (2009) (legal issues involving questions of due process and

statutory construction are subject to de novo review).

¶ 67 In determining the nature of the right to counsel afforded juveniles in delinquency

hearings, we first look to the Juvenile Court Act (Act). Section 1-5 of the Act sets forth the

“[r]ights of parties to proceedings.” 705 ILCS 405/1-5 (West 2006). It provides in pertinent

part:

“No hearing on any petition or motion filed under this Act may be commenced

unless the minor who is the subject of the proceeding is represented by counsel.

Notwithstanding the preceding sentence, if a guardian ad litem has been appointed

for the minor under Section 2-17 of this Act and the guardian ad litem is a licensed

attorney at law of this State, or in the event that a court appointed special advocate

has been appointed as guardian ad litem and counsel has been appointed to represent

the court appointed special advocate, the court may not require the appointment of

counsel to represent the minor unless the court finds that the minor’s interests are in

conflict with what the guardian ad litem determines to be in the best interest of the

minor.” (Emphasis added.) 705 ILCS 405/1-5(1) (West 2006).

¶ 68 The second sentence in the paragraph above was added to section 1-5(1) by Public Act

93-539 and became effective on August 18, 2003. It qualifies a minor’s right to counsel in

situations where a GAL has been appointed for the minor under section 2-17 of the Act,

which relates to abuse and neglect proceedings. Section 2-17(1) provides, in pertinent part:

“Immediately upon the filing of a petition alleging that the minor is a person

described in Sections 2-3 or 2-4 [705 ILCS 405/2-3, 2-4] of this Article, the court

-17-
shall appoint a guardian ad litem for the minor if:

(a) such petition alleges that the minor is an abused or neglected child[.]” 705

ILCS 405/2-17(1)(a) (West 2006).

¶ 69 Section 2-17 further provides in paragraph (1) that the appointed guardian ad litem “shall

represent the best interests of the minor and shall present recommendations to the court

consistent with that duty.” 705 ILCS 405/2-17(1) (West 2006). Thus, in an abuse and neglect

proceeding, a GAL is, in essence, an arm of the court. See In re Mark W., 228 Ill 2d 365, 374

(2008) (“A guardian ad litem functions as the ‘eyes and ears of the court’ and not as the

ward’s attorney.”). When a minor is the subject of an abuse or neglect petition, the appointed

GAL is required to meet with the minor, assess the circumstances, and determine what

disposition might be in the minor’s best interest. 705 ILCS 405/2-17(1), (8) (West 2006).

The GAL also has a duty to report back to the court and to provide the court with the GAL’s

opinion of what disposition would be in the minor’s best interests. 705 ILCS 405/2-17(1)

(West 2006). The GAL’s duty is to the court and to seeing that the minor’s “best interests”

are represented, regardless of whether the GAL’s belief as to the minor’s “best interests”

comports with what the minor wants. See In re Mark W., 228 Ill. 2d at 374 (“The traditional

role of the guardian ad litem is not to advocate for what the ward wants but, instead, to make

a recommendation to the court as to what is in the ward’s best interests.”); In re B.K., 358

Ill. App. 3d 1166 (2005).

¶ 70 By adding the second sentence to section 1-5(1), the legislature apparently believed that

when a minor is the subject of an abuse or neglect petition and is appointed a GAL who is

also an attorney at law, the minor’s interests are sufficiently protected so that the minor need

not be represented by separate counsel. This makes sense, both fiscally and practically. See

In re B.K., 358 Ill. App. 3d 1166, 1174 (2005) (in situations where no significant conflict

exists, it is financially and functionally prudent to appoint a single attorney to perform both

roles).

¶ 71 Unlike abuse and neglect proceedings, there is no requirement that a guardian ad litem

be appointed in delinquency proceedings. See 705 ILCS 405/2-17(1)(a) (West 2006). A

guardian ad litem may be appointed in a delinquency proceeding if the minor has no

interested parent or legal guardian, if the interests of the parent(s) differ from the minor’s,

or if counsel believes the juvenile is unable to act in his or her own best interests. See 705

ILCS 405/2-17(3) (West 2006); In re B.K., 358 Ill. App. 3d at 1170.

¶ 72 In section 5-170 of the Act, however, when discussing a minor’s right to counsel in a

delinquency proceeding the legislature provides as follows:

“(b)In a judicial proceeding under this Article [ArticleV, dealingwith delinquent

minors], a minor may not waive the right to the assistance of counsel in his or her

defense.” (Emphasis added.) 705 ILCS 405/5-170(b) (West 2006).

¶ 73 Thus, according to the plain language of the Act, a minor in a delinquency proceeding

has a nonwaivable right to be represented by a defense attorney. There is no statutory

exception which would permit representation by a GAL—even one who is also an attorney

at law.

¶ 74 Minors in delinquency proceedings also have a constitutional right to counsel. The

-18-
unconditional right to counsel and, in particular, the effective assistance of counsel, in

delinquency proceedings was first recognized by the United States Supreme Court, in In re

Gault, 387 U.S. 1 (1967).

¶ 75 In Gault, the Court considered “the precise impact of the due process requirement [upon]

proceedings” “by which a determination is made as to whether a juvenile is a ‘delinquent’

as a result of alleged misconduct on his part, with the consequence that he may be committed

to a state institution.” Gault, 387 U.S. at 13-14. After discussing the history and theoretical

underpinnings of the juvenile court system, the Court concluded:

“Failure to observe the fundamental requirements of due process has resulted in

instances, which might have been avoided, of unfairness to individuals and

inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy.

Due process of law is the primary and indispensable foundation of individual

freedom. It is the basic and essential term in the social compact which defines the

rights of the individual and delimits the powers which the state may exercise. As Mr.

Justice Frankfurter has said: ‘The history of American freedom is, in no small

measure, the history of procedure.’ But in addition, the procedural rules which have

been fashioned from the generality of due process are our best instruments for the

distillation and evaluation of essential facts from the conflicting welter of data that

life and our adversary methods present. It is these instruments of due process which

enhance the possibility that truth will emerge from the confrontation of opposing

versions and conflicting data. ‘Procedure is to law what “scientific method” is to

science.’ ”Gault, 387 U.S. at 19-21.

As to a minor’s right to counsel, the Gault Court held:

“A proceeding where the issue is whether the child will be found to be ‘delinquent’

and subjected to the loss of his liberty for years is comparable in seriousness to a

felony prosecution. The juvenile needs the assistance of counsel to cope with

problems of law, to make skilled inquiry into the facts, to insist upon regularity of the

proceedings, and to ascertain whether he has a defense and to prepare and submit it.

The child ‘requires the guiding hand of counsel at every step in the proceedings

against him.’ ” Gault, 387 U.S. at 36.

¶ 76 It is clear to us that a juvenile’s right to counsel in a delinquency proceeding is firmly

anchored in both due process and our statutory scheme. In fact, with the exception of the

right to a jury trial, the fourteenth amendment to the United States Constitution extends to

delinquent minors all of the basic rights enjoyed by criminal defendants. See Gault, 387 U.S.

at 30-31, 33, 41, 51, 55 (self-incrimination, notice, confrontation, cross-examination, and

counsel); In re Winship, 397 U.S. 358, 368 (1970) (reasonable doubt); Breed v. Jones, 421

U.S. 519, 529, 531 (1975) (double jeopardy). Moreover, since Gault, the need for zealous

advocacy to vindicate the constitutional rights of minors in delinquency proceedings has

become even greater. With the Juvenile Justice Reform Provisions of 1998, along with a

number of other amendments to the Juvenile Court Act since 1999, our legislature has

transformed the Act, making juvenile delinquency proceedings more akin to criminal

prosecutions. See People v. Taylor, 221 Ill. 2d 157, 165 (2006) (amendatory changes which

-19-
became effective in 1999, “radically altered” the Juvenile Court Act and “largely rewrote

article V of the Act to provide more accountability for the criminal acts of juveniles and,

from all appearances, to make the juvenile delinquency adjudicatory process look more

criminal in nature”). Although rehabilitation is still an important goal of delinquency

proceedings, they have become more punitive and less confidential. See In re A.G., 195 Ill.

2d 313, 317 (2001) (the 1998 revisions to the Act “represent[ ] a fundamental shift from the

singular goal of rehabilitation to include the overriding concerns of protecting the public and

holding juvenile offenders accountable for violations of the law”). In many cases, minors

who are found delinquent are subject to serious, life-altering consequences.

¶ 77 Given the above, the type of “counsel” which due process and our Juvenile Court Act

require to be afforded juveniles in delinquency proceedings is that of defense counsel, that

is, counsel which can only be provided by an attorneywhose singular loyalty is to the defense

of the juvenile.6

¶ 78 Our inquiry does not end here. We must still consider whether it is constitutionally and

statutorily permissible for a single attorney to function as both defense counsel and GAL

when representing a minor in a delinquency proceeding. Austin contends that such dual

representation constitutes a per se conflict of interest. The State, however, maintains that

there must be evidence of an actual conflict of interest resulting from the hybrid

representation. We agree with Austin.

¶ 79 It has long been recognized that the right to effective assistance of counsel includes the

right to conflict-free representation. See People v. Hernandez, 231 Ill. 2d 134, 142 (2008);

People v. Morales, 209 Ill. 2d 340 (2004). In People v. Washington, 101 Ill. 2d 104, 109-10

(1984), we held:

“An accused’s sixth amendment right to effective assistance of counsel is a

fundamental right. (Cuyler v. Sullivan (1980), 446 U.S. 335, 64 L. Ed. 2d 333, 100

S. Ct. 1708; Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct.

Both Austin and the amici have cited a number of legal publications and law review articles 6

which set forth recommendations, standards, and guidelines regarding the representation to be

afforded juveniles in delinquency proceedings. These authoritiesmaintain that proper administration

of the juvenile justice system requires a juvenile in delinquency proceedings to have the effective

assistance of defense counsel, not “best interests” representation. In situations where a guardian ad

litem must be appointed, it is recommended that the role be fulfilled by a separate person who may,

but need not be, an attorney. See National Council of Juvenile and Family Court Judges, Juvenile

Delinquency Guidelines, Improving Court Practice in Juvenile Delinquency Cases 30-31 (2005),

available at http://www.ncjfcj.org; National Advisory Committee for Juvenile Justice and

Delinquency Prevention, Standards for the Administration of Juvenile Justice, Commentary to

§ 3.134, at 278-79 (1980), available at http://www.eric.ed.gov; National Juvenile Defender Center,

Role of Juvenile Defense Counsel in Delinquency Court 7 (2009), available at http://www.njdc.info;

Recommendations of the UNLV Conference on Representing Children in Families: Child Advocacy

and Justice Ten Years After Fordham, 6 Nev. L.J. 592, 609 (2006); Recommendations of the

Conference on Ethical Issues in the Legal Representation of Children in Illinois, 29 Loy. U. Chi. L.J.

377, 382 (1998).

-20-
457.) The assistance of counsel means assistance which entitles an accused to the

undivided loyalty of his counsel and which prohibits the attorney from representing

conflicting interests or undertaking the discharge of inconsistent obligations. (People

v. Franklin (1979), 75 Ill. 2d 173; People v. Kester (1977), 66 Ill. 2d 162; People v.

Stoval (1968), 40 Ill. 2d 109.) In order to assure and protect these rights, the

defendant need not show prejudice in order to justify a reversal of his conviction if

the attorney representing him has an actual or possible conflict of professional

interests. Glasser v. United States (1942), 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457;

People v. Robinson (1979), 79 Ill. 2d 147; People v. Fife (1979), 76 Ill. 2d 418;

People v. Coslet (1977), 67 Ill. 2d 127; People v. Stoval (1968), 40 Ill. 2d 109.”

¶ 80 More recently, in People v. Taylor, 237 Ill. 2d 356 (2010), we discussed the difference

between per se conflicts and actual conflicts of interest. Citing People v. Hernandez, 231 Ill.

2d 134, 142 (2008), and People v. Spreitzer, 123 Ill. 2d 1, 13-14 (1988), we explained that

a per se conflict of interest will be found to exist where certain facts about a defense

attorney’s status engender, by themselves, a disabling conflict. Taylor, 237 Ill. 2d at 374. A

per se conflict has been found in situations where: (1) defense counsel had a prior or

contemporaneous association with the victim, the prosecution, or an entity assisting the

prosecution; (2) defense counsel contemporaneously represented a prosecution witness; and

(3) defense counsel was a former prosecutor who had been personally involved in the

prosecution of defendant. Taylor, 237 Ill. 2d at 374; People v. Morales, 209 Ill. 2d 340, 345-

46 (2004).

¶ 81 As we explained in Washington, the reason for having a per se rule prohibiting

representation by an attorney with possible conflicting interests is that certain associations

may have “subliminal effects” on counsel’s performance which are difficult to detect and

demonstrate. Washington, 101 Ill. 2d at 110. See also Spreitzer, 123 Ill. 2d at 16; People v.

Daly, 341 Ill. App. 3d 372, 376 (2003) (the per se conflict rule is designed to avoid

unfairness to the defendant, who may not be able to determine whether his representation

was affected by the conflict). Accordingly, if a per se conflict is established, the defendant

need not show that the conflict affected the attorney’s actual performance in order to secure

a reversal of his conviction. Taylor, 237 Ill. 2d at 374-75; People v. Stoval, 40 Ill. 2d 109,

113 (1968). If a per se conflict is not established, reversal will require a showing of an actual

conflict.

¶ 82 An actual conflict generally, if not exclusively, involves joint or multiple representation.

Taylor, 237 Ill. 2d at 375; Spreitzer, 123 Ill. 2d at 17. In actual conflict situations the accused

need not prove prejudice in that the conflict contributed to the conviction, but it is necessary

to establish that an actual conflict of interest adversely affected the lawyer’s performance.

Taylor, 237 Ill. 2d at 375-76 (citing Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)). In other

words, the defendant must point to some specific defect in his counsel’s strategy, tactics, or

decisionmaking attributable to the alleged conflict of interest. Taylor, 237 Ill. 2d at 376.

¶ 83 When deciding whether a per se conflict of interest exists, the reviewing court should

make a “realistic appraisal of defense counsel’s professional relationship to someone other

than the defendant underthe circumstances of each case.” (Internal quotation marks omitted.)

People v. Daly, 341 Ill. App. 3d at 376 (quoting People v. Hernandez, 246 Ill. App. 3d 243,

-21-
249 (1993)). Having done so here, we find there is an inherent conflict between the

professional responsibilities of a defense attorney and a GAL. See In re B.K., 358 Ill. App.

3d 1166, 1170-71 (2005) (“We are mindful there are inherent conflicts that exist when an

attorney acts as both a juvenile’s attorney as well as his guardian ad litem.”).

¶ 84 In a delinquency proceeding, when counsel attempts to perform the role of GAL as well

as defense attorney, the risk that counsel will render ineffective assistance or that an actual

conflict of interest will arise is substantial. See State v. Joanna V., 2004-NMSC-024, ¶ 13,

136 N.M. 40, 94 P.3d 783 (“Given the natural tension between the roles of GALand defense

counsel, there is a heightened potential that an attorney may become compromised by

attempting to do both.”). Moreover, the subliminal effect on counsel who attempts to perform

both roles may be subtle and not easily detected or demonstrated—particularly by the

juvenile being represented.

¶ 85 As noted earlier, there is no requirement that a guardian ad litem be appointed in

delinquency cases. Therefore, when a guardian ad litem is appointed in a delinquency case,

it is generally because there is no interested parent or legal guardian to represent the child’s

best interests. In these situations, the GAL must act in the role of a concerned parent, which

is often in opposition to the position of defense counsel. See In re Lisa G., 504 A.2d 1, 5

(N.H. 1986). Further, a GAL—unlike a defense attorney—owes a duty to the court and to

society. A guardian ad litem need not zealously pursue acquittal if he does not believe

acquittal would be in the best interests of the minor or society.

¶ 86 When counsel attempts to fulfill the role of GAL as well as defense counsel, the risk that

the minor’s constitutional and statutory right to counsel will be diluted, if not denied

altogether, is too great. See In re Lisa G., 504 A.2d at 5; In re Dobson, 212 A.2d 620, 622

(Vt. 1965) (“[A] lawyer attempting to function as both guardian ad litem and legal counsel

is cast in the quandry [sic] of acting as both attorney and client, to the detriment of both

capacities and the possible jeopardizing of the infant’s interests.”). Even though a

delinquency trial is not as adversarial as a criminal trial, the State still has the burden of

proving that the juvenile committed the alleged offense beyond a reasonable doubt. Only a

dedicated and zealous advocate can hold the State to that burden. We conclude, therefore,

that the interests of justice are best served by finding a per se conflict when minor’s counsel

in a delinquency proceeding simultaneously functions as both defense counsel and guardian

ad litem.

¶ 87 Having reached this conclusion, we now consider whether the facts of this case

demonstrate that Austin’s defense counsel, though not actually appointed as GAL, provided

“hybrid representation,” that is, that he functioned as both GAL and defense counsel in the

case at bar. To make this determination, we turn to the record.

¶ 88 Initially, we note that Austin’s parents hired the attorney who represented Austin and

Ricky in the delinquency proceedings. There is no dispute, therefore, that the boys’ attorney

was hired to perform the role of defense counsel and, as such, he cross-examined prosecution

witnesses, presented witnesses in defense, made objections, and provided closing argument.

The question before us, however, is not whether Austin’s attorney performed the duties of

defense counsel. Clearly, he did. The question is whether Austin’s attorneymisperceived the

-22-
role of defense counsel in juvenile delinquency proceedings to be some type of hybrid “best

interests” representation and, based on that misperception, provided something other than

the zealous representation to which Austin was entitled. Thus, in examining the record, our

focus is on evidence that Austin’s defense attorney functioned as GAL or “best interests”

counsel.

¶ 89 We begin by noting that, prior to trial, at a hearing on September 25, 2006, the court

explained the respondents’ right to counsel to their parents, Jim and Becky M., stating the

following:

“At this point, [respondents’ attorney] is entering an appearance for your sons only.

So, he represents them and does not represent you. He represents what’s in the best

interest of these Minors, which may or may not be what the Minors or the parents

think is in their best interest.” (Emphasis added.)

¶ 90 In describing the role of Austin’s attorney, the court gave the classic description of a

guardian ad litem. Thus, although the trial court did not appoint Austin’s attorney as a GAL,

the court, itself, perceived that to be his role. Further, Austin and his parents were advised

by the court, in no uncertain terms, that the type of counsel who would be representing

Austin at trial was not counsel in his defense but, rather, the “best interests” advocacy of a

GAL. The court’s comments are also significant because Austin’s attorney never attempted

to correct the court’s description of his representational role. The reason, it seems, is that

Austin’s attorney, too, saw his role more as that of a guardian ad litem than defense counsel,

as his comments at the beginning of trial demonstrate.

¶ 91 In the background section above, we noted that before the delinquency trial began

Austin’s attorney explained his rationale for representing both Austin and Ricky and for

allowing the admission of the videotaped statements. In the course of those explanations,

Austin’s attorney made it clear that he was aligning himself with Austin’s parents, the

prosecution, and the trial court in an attempt to do what he believed would be in the “best

interests” of his clients. For example, Austin’s attorney admitted that he was not giving

Austin and Ricky the same consideration he would give adult criminal defendants. He said:

“I am representing two clients here, and ordinarily, if this were an adult case—I

cannot imagine—it is extremely rare I would contest a hearing attempting to

represent two individual clients that deserve the benefit of individual representation,

separate consideration, and the allegations are kind of—they are pretty widespread.”

¶ 92 His explanation for representing both Austin and Ricky was:

“I don’t view such a proceeding as adversarial as it might be if it were an adult

case. I view this as a truth-seeking process on all parts. I explained this to the

parents, I think they are comfortable with me being a lawyer for both kids. They

agree it is in the best interest and beneficial to everybody that I continue to represent

both.” (Emphasis added.)

¶ 93 Also, when explaining why he was allowing witness testimony to be admitted by way of

videotape, he stated:

“I am comfortable with this in this case because we want to know the truth is

ultimately the view of the parents. If something along the nature of these allegations,

-23-
which are acts of sexual penetration involving children here, but my clients are 15

and 16 years old and the victims are 10 and 12 years old at the time. And I think our,

at that time, attitude is we have grave doubts these things occurred.

The boys deny they occurred, but I think the parents and I agree—I think with

Mr. Lee as well—that if such acts happened, then it needs to stop. An intervention is

not inappropriate by way of government to help these boys if such things happened.

You know, so. We are on the same page, and we don’t want to cause trauma to

anybody. But we are, we are not—we are seeking the truth this here [sic] the same

as the Court and the same as the prosecutor is our position. And I am comfortable

with proceeding by way of the video tape as opposed to requiring these young

children to come into Court at this hearing.” (Emphases added.)

¶ 94 Although these statements were made at the beginning of the trial, they are important

because they demonstrate the defense attorney’s mindset and set the tone for his

representation.

¶ 95 Defense counsel’s mindset is evident when he examined the boys’ parents. When

questioning Becky, the boys’ mother, defense counsel asked her:

“Q. Be fair to say that—let me ask you this. These are your adopted kids, Ricky

and Austin?

A. Yes.

Q. You love them?

A. Yes.

Q. You want the best for them?

A. Yes.

Q. These allegations cause you concern, do they not?

A. Yes.

Q. Would you participate in a coverup of such activity to try to prevent the truth

from coming out?

A. No.

Q. You don’t believe these allegations are true; is that right?

A. No.

Q. But you’re concerned?

A. Yes.

Q. You can’t be with your kids every minute of the day, can you?

A. No.

Q. And things can happen outside your knowledge?

A. Yes.” (Emphasis added.)

¶ 96 Similarly, when examining the boys’ father, Jim, counsel posed the following questions:

“Q. You love your kids as well as your wife?

A. Yes, I do.

-24-
Q. And you want what’s best?

A. Pardon me?

Q. You want what’s best for your kids?

A. Yes, I do.

Q. You don’t approve of child sex between children, do you?

A. No.

Q. And you would want to know if there was oral or anal sex involving Ricky and

Austin and either Jonathan or Dylan [sic] or anyone; is that right?

A. Yes.

Q. And you would accept the government’s help in trying to deal with issues like

that if you believed that had happened?

A. Yes, I would.”

¶ 97 Finally, during closing argument, defense counsel stated:

“There is certainly some similarities to a trial and that is—but I think there are

some differences here. I think I’d like to keep our attention—I believe that we all

have the same ultimate goal in mind, and that is the best interests of these kids.

The parents have both testified that their values are values that prohibit this type

of child sexual behavior. They are opposed to it in the strongest possible terms. If this

is happening, they want it known and they want their kids to get help so it doesn’t

happen again. That’s what theyhave testified to, and they deserve credibilityon that.”

¶ 98 Clearly, Austin’s attorney made it known on more than one occasion during the

delinquency trial that he shared with the court, the State, and the parents, the common goal

of getting to “the truth.” Austin’s attorney also suggested that he believed an adjudication

and the attendant consequences would be in Austin’s “best interests” if, in fact, he committed

the charged offenses. Although it is not unusual for a defense attorney to state that the

defense is seeking “the truth,” the implication is typically that “the truth” to be shown is that

the defendant is innocent of the charges. Here, however, defense counsel’s reference to “the

truth,” in context, indicates that “the truth” is that the alleged sexual abuse happened, and “if

such acts happened, then it needs to stop. An intervention is not inappropriate by way of

government to help these boys if such things happened.” (Emphasis added.)

¶ 99 We also find it telling that Austin’s attorney never attempted to suppress the one piece

of evidence which, ultimately, was the basis for the trial court’s finding of guilt—Austin’s

alleged statement to the police. Despite the fact that Austin’s attorneyelicited testimonyfrom

Sheree Foley which indicated that Austin was aggressively questioned by the Paxton police

chief, he never attempted to argue that the alleged statement by Austin was involuntary. Nor

did Austin’s attorney attempt to show that Austin had learning disabilities and diminished

mental capabilities—information that came out at sentencing—which might have made him

more vulnerable to the vigorous questioning at the police station. Further, in closing

argument, Austin’s attorney never argued that, due to the contradictory testimony, the court

should discount, or disregard altogether, Austin’s alleged statement at the police station. In

fact, defense counsel made no argument at all regarding this one contested point.

-25-
¶ 100 We recognize that juveniles are not entitled to a jury trial and, thus, delinquency

proceedings are not the exact equivalent of an adult trial. We also agree that, as envisioned

by the Juvenile Court Act, juvenile proceedings are intended to be less adversarial than

criminal trials. Nevertheless, when a minor is charged with a criminal offense—particularly

one which may subject him or her to a lifetime of collateral consequences—the minor is

entitled to an attorney who is dedicated to providing the minor with a zealous defense, an

attorney who will hold the prosecution to its burden of proof. The time for “best interests”

considerations is at the disposition phase.

¶ 101 Austin contends that, in this case, the comments and conduct of his attorney throughout

the delinquency proceedings are strong evidence that his attorney’s concern was to do what

he believed was in the best interests of his clients and of society and, thus, his attorney was

not acting as defense counsel. We agree. Based on the facts of this case, we hold, as the

appellate court did, that “[a]lthough the trial court never expressly appointed [Austin’s

attorney] as guardian ad litem, both the court and [Austin’s attorney] himself conceived his

role as that of a guardian ad litem—representing the minors’ and society’s best

interests—rather than that of a traditional defense attorney.” 403 Ill. App. 3d at 683-84. For

this reason, we find that Austin’s counsel labored under a per se conflict of interest.

Accordingly, we reverse Austin’s conviction and remand for a new trial.

¶ 102 B. Ineffective Assistance of Counsel

¶ 103 As set forth above, Austin also raises several claims of ineffective assistance of counsel

in his appeal. He contends: (1) his attorney was ineffective because he labored under a per

se conflict of interest based on his contemporaneous representation of Ricky, an alleged

victim in this case; (2) his attorney was ineffective because he labored under an actual

conflict of interest based on his relationship with Austin’s parents; (3) his attorney provided

ineffective assistance because he never challenged the admissibilityof the hearsaystatements

of three witnesses (the videotapes); (4) his attorney provided ineffective assistance because

he waived Austin’s constitutional right to confront the witnesses against him; and (5) his

attorneyprovided ineffective assistance because he neverfiled a motion to suppress Austin’s

statement to the police.

¶ 104 We have already discussed much of counsel’s complained-of conduct, finding that it is

evidence that Austin’s attorney was acting more as a guardian ad litem than as a defense

attorney. Therefore, we need not consider whetherthe conduct supports a free-standing claim

of ineffective assistance of counsel.

¶ 105 C. Sufficiency of the Evidence

¶ 106 Austin’s only remaining claim is that the evidence presented at his delinquency

proceeding was not sufficient to prove him guilty beyond a reasonable doubt. Although we

have already reversed Austin’s adjudication, we must determine whether double jeopardy

would prevent his retrial. See People v. Lopez, 229 Ill. 2d 322, 367 (2008) (retrial raises

double jeopardy concerns and requires us to consider the sufficiency of the evidence).

¶ 107 In delinquency proceedings, as in criminal cases, when evaluating a challenge to the

-26-
sufficiency of evidence, the relevant question is “whether, [after] viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” In re Jonathon C.B., 2011 IL

107750, ¶ 47; see also People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). Generally, the trier of fact has had the opportunity to

hear and see the witnesses and, for that reason, is in the best position to judge credibility.

People v. Wheeler, 226 Ill. 2d 92, 114 (2007). Thus, it is not the function of a reviewing court

to retry the defendant. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). Rather, a reviewing

court “must allow all reasonable inferences from the record in favor of the prosecution”

(People v. Cunningham, 212 Ill. 2d 274, 280 (2004)) and reverse a conviction only if the

evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt

of defendant’s guilt (People v. Collins, 214 Ill. 2d 206, 217 (2005)).

¶ 108 In the case at bar, the trial court admittedly struggled when assessing the credibility of

the three child witnesses whose testimony was received byway of videotape. Ultimately, the

court ruled that Willie’s testimony “lacked credibility,” Jonathon’s testimony was “only

slightly more credible,” and Dillon’s testimony was “suspect.” For these reasons, the court

found this evidence, standing alone, was not sufficient to support a finding of guilt and

acquitted Ricky. Austin, however, was alleged to have made an admission to the police.

Whether the statement was actually made was a hotly contested issue at trial. Nonetheless,

the court resolved that issue, ruling that the State had proved beyond a reasonable doubt that

the admission was made.

¶ 109 Affording proper deference to the findings of the trial court, we cannot say that no

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt. Accordingly, we hold that the evidence was sufficient to prove Austin

guilty.

¶ 110 III. Conclusion

¶ 111 We find that the evidence presented by the State in Austin’s delinquency proceeding was

sufficient to support Austin’s adjudication. However, we reverse Austin’s adjudication of

delinquency based on our finding that, under the specific facts of this case, the legal

representation Austin received at his delinquencytrial was not the type of counsel guaranteed

by due process and our Juvenile Court Act. Austin’s attorney operated under a per se conflict

of interest due to the fact that he functioned more as a guardian ad litem than as defense

counsel.

¶ 112 The judgments of the circuit and appellate courts are reversed and the cause is remanded

to the circuit court for further proceedings.

¶ 113 Judgments reversed.

¶ 114 Cause remanded.

-27-
¶ 115 JUSTICE FREEMAN, concurring in part and dissenting in part:

¶ 116 I agree that Austin’s delinquency adjudication must be reversed, but for reasons other

than those advanced in today’s opinion. Ifind Austin’s argument that the State failed to meet

its burden of proof to be persuasive. As such, remand for a new trial is inappropriate.

¶ 117 UnderIllinoislaw, proof of an offense requires proof of two distinct propositions or facts

beyond a reasonable doubt: (1) that a crime occurred, i.e., the corpus delicti; and (2) that the

crime was committed by the person charged. People v. Sargent, 239 Ill. 2d 166, 183 (2010).

It is well established that proof of the corpus delicti maynot rest exclusively on a defendant’s

extrajudicial confession, admission, or other statement. Id.; People v. Furby, 138 Ill. 2d 434,

446 (1990); People v. Lambert, 104 Ill. 2d 375, 378 (1984). Where a defendant’s confession

is part of the proof of the corpus delicti, the prosecution must also adduce corroborating

evidence independent of the defendant’s own statement. Sargent, 239 Ill. 2d at 183. If a

confession is not corroborated in this way, a conviction based on the confession cannot be

sustained. Id.

¶ 118 “[I]f the independent evidence tends to prove that an offense occurred, then such

evidence, if corroborative of the facts contained in the confession, may be considered along

with the confession in establishing the corpus delicti.” (Emphasis in original.) People v.

Willingham, 89 Ill. 2d 352, 361 (1982). “In such event, the independent evidence need not

establish beyond a reasonable doubt that an offense did occur.” Id.

¶ 119 There is no requirement that the independent evidence and the details of the confession

correspond in every particular. Furby, 138 Ill. 2d at 451. “What is necessary are facts or

circumstances ‘ “independent of the confession, and consistent therewith, tending to confirm

and strengthen the confession.” ’ ” Id. at 452 (quoting People v. Lueder, 3 Ill. 2d 487, 489

(1954), quoting Bergen v. People, 17 Ill. 426, 429 (1856)).

¶ 120 Under the corpus delicti corroboration requirement, the State’s burden, as generally

framed by this court, is that the independent evidence must “tend” to show or establish that

a crime did occur. The term “credible” is essentially absent from these formulations.

However, a credibility component is nevertheless implicit. See People v. Hubbard, 38 Ill. 2d

104, 110-11 (1967) (rejecting State’s argument that defendant’s rape confession was

sufficiently corroborated, where “the evidence supporting the confession is so weak as to

defy belief”); Furby, 138 Ill. 2d at 452 (requiring facts or circumstances “independent of the

confession, and consistent therewith, tending to confirm and strengthen the confession”

(internal quotation marks omitted)). The alternative would be untenable. It makes no sense

to allow incredible evidence to suffice to corroborate a defendant’s admission. Evidence that

is not credible cannot corroborate anything; the terms are self-contradictory.

7

As indicated above, a credibility component is implicit in Illinois’ corpus delicti 7

corroboration requirement. I note, in addition, that other jurisdictions have expressly included such

a component. See State v. Anglin, 751 A.2d 1007, 1011 (Me. 2000) (stating there must be “such

credible evidence as will create a substantial belief that the crime charged has been committed by

some person”); State v. Puckett, 2010-Ohio-6597, ¶ 15, 947 N.E.2d 730 (Ct. App.) (stating record

must contain “some competent and credible evidence independent of the defendant’s confession to

-28-
¶ 121 Here, the circuit court, the finder of fact in this case, found the testimony of the minors

not to be credible. There is nothing in the record which would cause me to doubt this finding,

which was also noted by the dissenting justice below (403 Ill. App. 3d 667, 687 (Appleton,

J., dissenting)). As a result of this finding, the determination of Austin’s guilt “then had to

be decided on the evidence of his interview with the DCFS investigator and the Paxton

police.” Id. But convicting a defendant solely on the basis of a confession directly contradicts

the corpus delicti corroboration requirement. See Sargent, 239 Ill. 2d at 183; Julian S.

Millstein, Note, Confession Corroboration in New York: A Replacement for the Corpus

Delicti Rule, 46 Fordham L. Rev. 1205 (1978). If a naked confession is not corroborated

pursuant to this requirement, a conviction based on the confession cannot be sustained.

Sargent, 239 Ill. 2d at 183; see Lueder, 3 Ill. 2d at 488 (citing Bergen, 17 Ill. at 428-29).

¶ 122 In light of the above, Austin’s conviction must be reversed because the State did not

satisfy its burden of proof. I would therefore reverse the delinquency adjudication outright.

¶ 123 JUSTICE KARMEIER, concurring in part and dissenting in part:

¶ 124 I write separately to express my agreement with Justice Freeman’s separate opinion and

with a portion of Justice Thomas’ dissent.

¶ 125 With respect to the latter, I believe Justice Thomas persuasively demonstrates that trial

counsel understood his proper role in this delinquency proceeding and functioned

accordingly. Thus, there was no per se conflict of interest. As Justice Thomas notes, “the

State had it exactly right when it argued that, ‘a best-interest-oriented defense counsel is not

the same thing as a GAL, as counsel’s loyalties lay firmly and solely with his juvenile

client.’ ” Infra ¶ 158 (Thomas, J., dissenting). I disagree with the majority’s conclusion, and

basis for reversal, i.e., that “Austin’s attorney operated under a per se conflict of interest due

to the fact that he functioned more as a guardian ad litem than as defense counsel.” Supra

¶ 111.

¶ 126 Notwithstanding, I, like Justice Freeman, believe that there must be credible evidence to

corroborate Austin’s alleged one-sentence confession, the existence of which was itself a

matter of dispute at trial. As one appellate panel recently put it, the State’s independent

evidence should “inspire belief in the defendant’s confession.” People v. Rivera, 2011 IL

App (2d) 091060, ¶ 41. The quality of the State’s “corroborative” evidence in this case fails

in that regard—some of it can be dismissed out of hand as sheer fantasy. The trial court

concluded that Willie’s testimony “lacked credibility,” Jonathon’s was “only slightly more

credible,” and Dillon’s was “also suspect.” What is “slightlymore credible” than incredible?

Is “suspect” synonymous with “credible”? As Justice Freeman aptly observes, “[e]vidence

that is not credible cannot corroborate anything.” Supra ¶ 126 (Freeman, J., concurring in

part and dissenting in part). Here, we have, on the record, the circuit court’s own assessment

of the witnesses. The circuit court never found the testimony of the minors to be credible.

Moreover, we have stated that “the corroboration rule requires that there be independent

evidence tending to show that defendant committed each of the offenses for which he was

establish that a crime occurred”). I would make this court’s implicit credibility component explicit.

-29-
convicted.” People v. Sargent, 239 Ill. 2d 166, 185 (2010). The circuit court, after hearing

these children testify, was onlywilling to saythat “something probablyhappened.” That does

not appear to reflect the degree of specificity required by our jurisprudence. I agree with

Justice Freeman’s analysis and conclusion. Austin’s delinquency adjudication should be

reversed outright.

¶ 127 JUSTICE THOMAS, dissenting:

¶ 128 Today, for the first time, the Illinois Supreme Court holds that the proper way for an

appellate court to proceed on review is to first adjudicate the merits of an issue and next to

determine if the case even presents that issue. I cannot agree with my colleagues’ decision

to depart from basic appellate procedure, nor do I agree with their conclusion that this case

presents the issue that they have decided to adjudicate. The record is unmistakably clear that

attorney Novak did not serve as a GAL. Rather, he functioned solely as a defense

attorney—and a remarkably effective one at that. This case presents no issue of hybrid

representation, and the majority has issued an advisory opinion on a set of facts not before

the court. In doing so, my colleagues unfairly demean what was, in truth, a fine performance

by attorney Novak, and their conclusion that Austin was denied his right to counsel is

completely unfounded and finds no support in the record. Moreover, despite the court’s

pronouncement that its reversal is “based on *** the specific facts of this case” (supra

¶ 111), there can be doubt just how broad the court’s holding actually is: no matter how well

a minor’s defense attorney performs in a delinquency proceeding, the minor is entitled to a

new trial if he can point to any evidence in the record that his counsel had a best interests

“mindset” (supra ¶ 94). There is no justification for such a holding, and I therefore must

dissent.

¶ 129 I. The Majority Opinion Is Written Backwards

¶ 130 The majority puts the cart before the horse when, before determining whether this case

even involves hybrid representation, it addresses the issue of whether a per se conflict of

interest arises when an attorney serves both as GAL and defense counsel. This is clearly

backwards. It makes no sense to determine if hybrid representation is permissible before

determining if this case even involves hybrid representation. The appellate court addressed

the issues in the proper order. First, the appellate court properly noted that whether Novak

served as both GAL and defense attorney was a “threshold” issue. After it concluded

(incorrectly) that he did serve in both capacities, it then moved on to consider whether such

representation was permissible. 403 Ill. App. 3d at 683-84.

¶ 131 If this were just a matter of style, I would be inclined to let it go. This is much more

important than mere style, however, as courts must be constrained by the facts before them.

If it were otherwise, a court could decide whatever it wanted at any time, and advisory

opinions would be rampant. Let us consider the following two self-evident propositions:

(1) The case in which it is appropriate to determine whether a defense attorney

may serve as both defense attorney and GAL is one in which the attorney served as

both defense attorney and GAL.

-30-
(2) If the case before the court does not involve an attorney who served as both

GAL and defense attorney, then that case is an inappropriate vehicle in which to

determine if the same attorney may fill both roles.

Is there anything controversial about the above two statements? Is it even possible to quarrel

with either? If we accept the truth of the above two statements, as we must, then it is obvious

that the court must first determine if this case involves hybrid representation before

adjudicating the merits of the conflict of interest issue.

¶ 132 Demonstrating the error of the majority’s ways is a simple exercise. First, let us assume

that the court first addresses whether hybrid representation occurred in this case before

determining whethersuch representation was permissible. One of two things would happen.

If the court determines that there was no hybrid representation, then it will decline to address

the conflict issue as not properly before the court. Indeed, this court explained in People ex

rel. Partee v. Murphy, 133 Ill. 2d 402, 409 (1990), that it will not reach the merits of a

conflict of interest question if the facts do not support finding such a conflict because that

would mean that the issue is “not ripe” and that any opinion on the issue would be “purely

advisory.” Alternatively, if the court determines that there was hybrid representation, then

it would go on and address whether such representation is permissible. In neither instance

would the court end up with an advisory opinion.

¶ 133 Now let us look at what happens with the majority’s preferred approach. If you first

determine that a per se conflict of interest arises when an attorney functions as both defense

attorney and GAL, and then determine—as the majority incorrectly does here—that hybrid

representation occurred, there is no problem. But, if you first determine that hybrid

representation is impermissible, but then determine that the case before the court does not

involve hybrid representation, you are left with a purely advisory opinion. An approach that

inevitably leads to advisory opinions cannot be correct. So, while the majority’s approach

ultimately does not create a problem in this particular case, advisory opinions will inevitably

follow in the future if this is how this court wants reviewing courts to proceed. Moreover,

no one ever wants to conclude that all of their work has been a colossal waste of time, so

determining that the issue is properly before the court should always be done before the issue

is adjudicated.

¶ 134 Again, this is not just a matter of style, as this court clearly explained in Partee. In that

case, the issue was whether it was a conflict of interest for the State’s Attorney to represent

both the county clerk and the county treasurer, in their official capacities, in a tax indemnity

proceeding. Partee, 133 Ill. 2d at 404. This court, in a unanimous opinion, explained why it

would not be proper to answer this question unless the State’s Attorney was currently

representing both parties:

“Next, on the issue of whether dual representation is allowed in a tax indemnity

proceeding, we believe that in resolving that question we would be rendering an

advisory opinion. Our jurisdiction is restricted to cases which present an actual

controversy, and we decline to issue advisory opinions on moot or abstract questions

of law. (People ex rel. Black v. Dukes (1983), 96 Ill. 2d 273, 276; In re Marriage of

Wright (1982), 89 Ill. 2d 498, 500; Underground Contractors Association v. City of

-31-
Chicago (1977), 66 Ill. 2d 371, 375.) An advisory opinion results if the court resolves

a question of law which is not presented by the facts of the case. (See Slack v. City

of Salem (1964), 31 Ill. 2d 174, 178 (court vacated trial court’s resolution of a

‘hypothetical’ constitutional issue).) If it is apparent that an opinion cannot affect the

result as to the parties or controversy before it, the court should not resolve the

question merely for the sake of setting a precedent to govern potential future cases.”

Id. at 407-08.

The court agreed with the State’s Attorney’s contention that the clerk was not currently a

party to the suit and that the State’s Attorney was thus not currently representing the clerk.

The court noted that the clerk may be made a party in the future and that, at that time, the

State’s Attorney might be called upon to represent the clerk. However, because those facts

did not currently exist, the question of whether an impermissible conflict would be created

was not ripe for discussion. Id. at 409. The Partee approach was obviously correct. Partee

would have come out the other way if the majority’s approach were followed. The court

would have simply issued an advisory opinion on an issue for no other reason than that the

appellant put the argument in its brief. One would hate to see the majority’s framework

become standard procedure in the appellate court, but what choice will the appellate court

have? Even in the face of this dissent, the majority has failed to offer a single justification

for departing from standard appellate procedure.

¶ 135 II. There Was No Hybrid Representation in This Case

¶ 136 A. Statement of Facts

¶ 137 Before I turn to the heart of this dissent, which will explain why the majority is

unquestionably incorrect in asserting that Novak operated under a per se conflict of interest,

I must take issue with the manner in which the majority sets forth the facts of this case. In

another departure from standard opinion writing, the majority does something that I have

never seen this court do before. Although it provides a narrative statement of facts, it

occasionally switches to a Q and A format for the sole purpose of sprinkling in critiques of

Novak’s trial strategy that are not being raised by the parties. For instance, the majority

periodically criticizes Novak for failing to object. In one instance, the majority implies that

Novak did not object to leading questions (which are not set forth) (supra ¶ 18 n.3), but,

typically, the majority does not even state what the objection should have been. In another

instance, the majority criticizes Novak for objecting a few questions too late (even though

his objection was overruled). Supra ¶ 14. When to object, of course, is solely a matter of trial

strategy, and this court’s previous position had always been that it will not second-guess

matters of trial strategy, even when being asked to adjudicate an ineffective assistance of

counsel claim. People v. Manning, 241 Ill. 2d 319, 333-34 (2011). Now, apparently, the court

will not only second-guess trial strategy, it will even do so in the statement of facts. The

majority frequently does not state what the objection should have been, or why it believes

the objection would have been successful, so it is difficult to even craft a response to its

critiques.

¶ 138 Further, Austin has raised no issue whatsoever about the manner in which Novak

-32-
examined witnesses and has not raised a single instance in which he believed that Novak

should have objected. This is not part of Austin’s per se conflict of interest argument, nor is

it part of his ineffective assistance of counsel argument. Moreover, it is not even part of the

majority’s analysis. When the majority sets forth its reasons for reversing, it makes no

mention of Novak not objecting often enough. If Austin is raising no issue about the 8

frequency of Novak’s objections, and that plays no part in the majority’s analysis, then why

is the majority sprinkling these critiques throughout its statement of facts? It seems that the

only purpose this serves is to prejudice the reader against Novak before the reader gets to the

court’s analysis. A different conclusion might be possible if the court also highlighted

examples of the prosecutor failing to object or noted the many instances of effective

lawyering by Novak. Failing that, what possible conclusion is there other than that the court

wants to paint Novak in as negative a light as possible?

¶ 139 Most of the majority’s critiques of Novak are baseless, anyway. First, it goes without

saying that a judge could take the transcript in any criminal case and, with all the time in the

world and not in the heat of trial, find instances in which an attorney could have objected,

could have objected earlier, or let a leading question go by. Since when has that ever meant

that an attorney is not functioning as defense counsel? It is a cardinal rule that courts should

not, with the benefit of hindsight, second-guess the strategic decisions of defense counsel.

People v. Jacobazzi, 398 Ill. App. 3d 890, 922 (2009). Moreover, this was not a jury trial in

which there is a danger that the trier of fact will be improperly swayed. Rather, it was a bench

trial, at which the judge is presumed to consider only relevant, competent testimony. People

v. Kerwin, 159 Ill. 2d 436, 446 (1994).

¶ 140 Let us now look more closely at a few of the majority’s complaints. The majority

complains that Novak did not object soon enough when the prosecutor was asking Becky a

number of questions about Austin’s alleged admission at the police station. The majority

suggests that these questions were improper because Becky said that she had not been

present. Supra ¶ 39. However, the majority immediately demonstrates the error of its own

statement by setting forth questions from the transcript showing that the prosecutor was not

asking Becky any questions that would have required her personal knowledge about the

incident. Rather, he was asking her about her own review of the police report and

conversations that she had with her husband and Austin about the incident. Novak objected

to this line of questioning on hearsay grounds, but the court overruled his objection. The

majoritysuggests that Novak could have objected a fewquestions earlier, but what difference

would that have made? What is the majority suggesting here, that if Novak would have had

an objection overruled a few questions earlier he would have been a defense attorney, but

since he waited a few questions too long he was a GAL? And, if that is not what the majority

is suggesting, then why include this criticism at all? Further, not only did the trial court

If the majority did rely on this, it would be wholly improper, as Austin has made no such 8

argument. In People v. Givens, 237 Ill. 2d 311, 323-25 (2010), this court very clearly said that it

would not search the record for unargued or unbriefed reasons to reverse a trial court’s judgment.

Doing so would have the effect of transforming this court’s role from that of jurist to that of

advocate. Id. at 324.

-33-
overrule Novak’s objection, but the testimony that came out was actually helpful to Austin.

All that the prosecutor’s questions accomplished were to once again allow Becky to say both

that the police were being nasty and calling Austin a liar and that Austin denied confessing.

¶ 141 Surely the majority knows that just because an attorney can object does not mean that an

attorney should object. Often cross-examination accomplishes nothing more than allowing

the witness to go over his or her testimony again, further burning it into the brain of the trier

of fact. Clearly it is proper strategy for an attorney to forgo objections that he could make if

he believes that the testimony is helping his side. Here, the answers Becky was giving were

helpful to the defense, so there is no justification for the majority’s criticisms of Novak. Is

9

it now the position of the Illinois Supreme Court that an attorney should make every

objection that the law allows, even when the testimony coming from the stand is helpful to

that party’s case? And does the court feel so strongly about this that it is worth interrupting

its statement of facts to point it out?

¶ 142 The majority immediately follows the above critique by once again criticizing Novak for

failing to object to testimony that was helpful to his case. The majority sets forth several

pages of transcript in which the prosecutor was questioning Becky about previous statements

that she made that she believed that Jonathan and Dillon had been abused before being

placed in her home. Supra ¶¶ 41-44. She confirmed to the prosecution that she had this belief

and that she felt that it was important that DCFS be made aware of the information. The

prosecutor then attempted to determine whethershe had any similar knowledge with respect

to Willie. As the majority notes, the trial judge eventually suggested that the prosecutor move

along. This in no way means, however, that Novak should have been objecting. Obviously,

the defense was hoping to convey that the sexual knowledge and allegations of the victims

were based on experiences that they had before being placed in Jim and Becky’s home.

Indeed, Austin is relying on that very point to try to obtain a reversal of his conviction. In his

reasonable doubt argument, Austin argues that Dillion’s claims “were farfrom spontaneous,

and he had a source of precocious sexual knowledge wholly unrelated to his time at the

M’s.” (Emphasis added.) Becky’s answers on cross-examination were supportive of this

point, and the prosecutor failed to dislodge her from her statements. But, apparently, the only

proper strategy for Novak to employ would have been to object to questions that were

eliciting testimony helpful to his side.

¶ 143 The majority also seems to find fault with Novak for conceding in his closing argument

that this was a “tough case” (after editorializing that the prosecutor’s argument was

“forceful” but that Novak’s was not). Supra ¶¶ 52, 56. But, Novak needed to have credibility

in his closing argument. What was he supposed to say, that a case in which three witnesses

are accusing your client of sexual abuse and two witnesses are saying that your client

confessed to the crime is a slam dunk for acquittal? How would that have gone over with the

trial court?

¶ 144 I truly regret having to divert the focus of this dissent from the important legal issues

As we will see, this is just one example out of many of either Austin or the majority 9

criticizing Novak for proper and effective lawyering.

-34-
before the court. The above discussion is necessary only because the majority has chosen not

to simply set forth a narrative statement of the facts relevant to the issues before the court.

It is unfortunate that a majority of this court believes that it is appropriate in a statement of

facts to second-guess an attorney’s trial strategy on matters not being raised by the parties.

¶ 145 B. Novak Was Not a GAL

¶ 146 On most issues that come before the court, a reasonable argument can be made on both

sides, and there is legitimate room for disagreement. Whether Novak served as a GALin this

case is not one of those issues. The only legitimate conclusion that can be drawn from the

record is that Novak served only as a defense attorney. As the majority concedes, a GAL is

appointed by the court. See 705 ILCS 405/2-17(1), (3) (West 2010). In a delinquency

proceeding, a GAL is appointed only if the court makes one of two statutory findings: (1)

there may be a conflict of interest between the minor and his parents or other custodian; or

(2) it is otherwise in the minor’s best interests that a GAL be appointed. 705 ILCS 405/2-

17(3) (West 2010). The majority claims that it makes its determination of whether Novak

functioned as a GAL by “turn[ing] to the record” (supra ¶ 87), but unless the majority can

point to the page in the record where the trial court made the requisite statutory finding and

appointed Novak a GAL, the discussion should end here. The record clearly shows that

Novak was hired by Austin and Ricky’s parents to defend the misdemeanor allegations

against Austin and Ricky, and he was never appointed as a GAL. Nor did either the appellate

court or the majority cite any authority for the proposition that an attorney can imagine

himself into the role of a GAL or become one in any other way besides a court appointment.

¶ 147 C. There Was No Per Se Conflict of Interest

¶ 148 Once we accept the obvious truth that Novak did not serve as GAL in this case, we can

stop talking about per se conflicts of interest. As this court has clearly explained, and as the

majority acknowledges, a per se conflict of interest exists where “certain facts about a

defense attorney’s status engender, by themselves, a disabling conflict.” (Emphasis added.)

People v. Taylor, 237 Ill. 2d 356, 374 (2010); People v. Hernandez, 231 Ill. 2d 134, 142

(2008). In other words: “[w]hen a defendant’s attorney has a tie to a person or entity that

would benefit from an unfavorable verdict for the defendant, a per se conflict arises.”

Hernandez, 231 Ill. 2d at 142; People v. Janes, 168 Ill. 2d 382, 387 (1995); People v.

Spreitzer, 123 Ill. 2d 1, 16 (1988). Or, as the appellate court has explained, per se conflicts

exist where defense counsel has professional commitments to others clearly antagonistic to

the interests of the accused. People v. Claybourn, 221 Ill. App. 3d 1071, 1080 (1991).

¶ 149 Applying the above law, how can there possibly be a per se conflict of interest in this

case if Novak was never appointed GAL? As we have clearly explained, facts about the

attorney’s status, all by themselves, create per se conflicts of interest. Here, Novak’s only

status was that of a defense attorney, hired by Austin’s parents, to represent Austin in a

delinquency proceeding. Novak did not have a tie to any person or entity who would have

benefitted from an unfavorable verdict for Austin (see Hernandez, 231 Ill. 2d at 142); nor did

he have professional commitments to people who had interests antagonistic to Austin’s (see

-35-
Claybourn, 221 Ill. App. 3d at 1080). Novak’s sole professional commitment was to Austin

and his brother, and, as Novak himself explained on the record, he had a duty to no one but

Austin and his brother.

¶ 150 This court has previously rejected a defendant’s attempt to rely on the per se conflict of

interest rule when the requisite status was not present. In People v. Morales, 209 Ill. 2d 340

(2004), the defense attorney also represented a person, Hernandez, who was a potential

witness against the defendant. Moreover, some of Hernandez’s out-of-court statements about

the defendant were admitted into evidence at the defendant’s sentencing. We rejected the

defendant’s claim that this was a per se conflict of interest because, “the fact remain[ed] that

[Hernandez] was never a witness. Thus defense counsel never assumed the status of attorney

for a prosecution witness.” Id. at 346. The exact same analysis should be applied here. The

fact remains that the court never appointed Novak a GAL, and thus he never assumed the

status of a GAL.

¶ 151 The State quite sensibly responded to Austin’s wholly improper request that this court

issue an advisory opinion on a set of facts not before the court by pointing out that “[t]he

question is not whether Novak improperly assumed two conflicting roles, but whether he

fulfilled his one and onlyrole—that of defense counsel—appropriately.” The State notes that,

even if Novak misperceived his role, that clearly does not transform this into a per se conflict

case: “[r]egardless of how respondent’s counsel perceived his role, it is illogical to claim that

counsel was conflicted in executing two different roles when he was not assigned both roles.”

Thus, the State had it exactly right when it stated that, “[r]espondent’s arguments directed

to the propriety of hybrid representation therefore invite the Court to engage in a purely

hypothetical exercise.”

¶ 152 The majority does not respond to the State’s argument on this point, but, clearly, the State

is correct. Assume for the sake of argument that a defense attorney in a delinquency

proceeding misperceives his role as more like that of a GAL. Which of these questions better

describes the issue facing the court: (1) Did the attorney misunderstand the role of a defense

attorney in a delinquency proceeding, and, if so, did that misperception prejudice the

defendant? or (2) Did the attorney misunderstand the role of a defense attorney in a

delinquencyproceeding, and, if so, did this misperception transform the attorneyinto a GAL,

such that a per se conflict of interest arose? Is it not obvious that it is the former? How can

an attorney’s misperception of the role of a defense attorney in a delinquency proceeding

give the attorney the status of a GAL, which is a position that requires a court appointment?

And, if the attorney does not have the status of a GAL, then there is no hybrid representation

and no per se conflict of interest. By eliminating the status component of the per se conflict

of interest rule, the majority has seriously undermined that entire body of case law and

opened the door to the possibility that the courts will begin to find per se conflicts based on

nothing other than an attorney’s “mindset” (supra ¶ 94). Is the “mindset” holding relevant

only in this context, or can it be applied in any per se conflict of interest situation? If there

is any limiting principle on this holding, the majority should say what it is.

-36-
¶ 153 D. Novak Functioned Solely As a Defense Attorney

¶ 154 As Istated above, I reject out of hand the notion that a per se conflict of interest between

an attorney’s duties as GAL and defense attorney can arise in a case in which the attorney

was not a GAL. Assuming the majority’s position for the sake of argument, however, Austin

still is not entitled to relief because the record is unmistakably clear that Novak functioned

solely as a defense attorney. We got to the point we are at today—with Austin requesting an

advisory opinion on an issue not before the court and multiple entities joining in an amicus

curiae brief on an issue not before the court—as a result of a surprisingly brief analysis by

the appellate court. This is the entirety of the appellate court’s analysis on this point:

“Although the trial court never expressly appointed Novak as guardian ad litem, both

the court and Novak himself conceived his role as that of a guardian ad

litem—representing the minors’ and society’s best interests —rather than that of [10]

a traditional defense attorney. Accordingly, we treat the issues raised by respondent

as though the trial court formally appointed Novak as guardian ad litem.” 403 Ill.

App. 3d at 683-84.

In other words, the appellate court was not the slightest bit concerned with looking at how

Novak actually performed in this case. All that the appellate court needed to look at was the

trial court’s comment and the brief speech that Novak gave before the start of the

adjudicatory hearing. The appellate court apparently believed that these comments show that

Novak so fundamentally misunderstood the proper role of a defense attorney in a

delinquency proceeding that he, essentially, at that moment, became the exact equivalent of

a GAL, such that the court needed to determine whether a disabling per se conflict of interest

arose.

11

¶ 155 The majority’s position is somewhat more reasonable. The majority identifies the issue

not so much as how Novak conceived his role, but as how he actually functioned during the

proceeding. The majority notes that Austin argued that he was deprived of his constitutional

right to counsel in his defense because Novak “performed less as a defense attorneyand more

as a guardian ad litem.” (Emphasis added.) Supra ¶ 63. The majority states that, “[w]e must

still consider whether it is constitutionally and statutorily permissible for a single attorney

to function as both defense counsel and GAL when representing a minor in a delinquency

proceeding” (emphasis added) (supra ¶ 65) and later concludes that, while Novak was not

actually appointed as GAL, he “functioned [as one] in the case at bar” (emphasis added)

(supra ¶ 87). Further, the majority acknowledges that the problem arises only when counsel

“attempts to perform the role of GAL as well as defense counsel” (emphasis added) (supra

Neither the trial court nor Novak said that Novak was representing society’s best interests. 10

In one sense, however, the appellate court’s error is more understandable than the 11

majority’s because the appellate court did not acknowledge or discuss the status component of the

per se conflict of interest rule. The appellate court also did not find that a per se conflict of interest

existed, so it might have failed to appreciate the disruption to the law that would occur by ignoring

the status component. By contrast, the majority does recognize the status requirement (supra ¶ 80),

but then inexplicably fails to enforce it.

-37-
¶ 84), and thus concludes that it needs to make a “realistic appraisal of defense counsel’s

professional relationship to someone other than the defendant” (emphases added) (internal

quotation marks omitted) (supra ¶ 83).

¶ 156 Unfortunately, however, once it moves onto the analysis, the majority does not do any

of the things it promised to do. As did the appellate court, the majority focuses almost

exclusively on the speech that Novak gave before the hearing even started. The majority does

not consider how Novak functioned during the proceeding, does not cite examples of him

attempting to perform the role of GAL, and does not make a realistic appraisal of his

professional relationships to other persons. Instead, the majority changes the focus entirely

and claims that it is reversing not based on how Novak functioned at trial but rather on

Novak’s “mindset” prior to trial and the “tone” of his representation. Supra ¶ 94. The

majority does not explain the disconnect between the law it sets forth and the law it applies.

Except for the trial court’s statement and Novak’s brief speech, the only things that the

majority points to in trying to make the case that Novak functioned as a GAL rather than as

a defense attorney are: (1) Novak’s failure to file a motion to suppress that would have had

no chance of succeeding (supra ¶ 99); and (2) Novak’s pursuing of a line of questioning that

allowed him to make a more effective closing argument.

¶ 157 In making its case that Novak functioned as a GAL rather than as a defense attorney, the

majority relies on four things: (1) the trial court’s statement to Austin’s parents that Novak

represented what was in the best interests of Austin and Ricky and that this may or not be

what the minors or their parents thought was in the minors’ best interests; (2) the brief speech

that Novak gave before the adjudicatory hearing began; (3) Novak’s failure to file a motion

to suppress Austin’s statement to the police; and (4) Novak eliciting testimony from Austin’s

parents that they were opposed to child sexual abuse and that they would accept the

government’s help in dealing with it if they believed that it happened, and then relying on

this point in closing argument. After explaining why these things did not make Novak the

functional equivalent of a GAL, I will do what the majority promised, but failed, to

do—consider how Novak actuallyfunctioned in the proceeding andmake a realistic appraisal

of Novak’s professional relationship to people other than Austin.

¶ 158 As for the trial court’s statement, Ifind it largely irrelevant. No matter what the trial court

thought Novak’s role should be, as long as Novak functioned as a defense attorney for

Austin, then Austin could not have suffered any prejudice from the trial court’s statement.

Again, as even the majority concedes, the proper focus here is on how Novak functioned in

the case. Moreover, the trial court’s description of what it viewed Novak’s role to be was not,

as the majority claims, “the classic description of a guardian ad litem” (supra ¶ 90). Indeed,

the classic description of a GAL is given in the majority’s own opinion, where the majority

explains that, “ ‘[a] guardian ad litem functions as the “eyes and ears of the court” and not

as the ward’s attorney.’ ” Supra ¶ 69 (quoting In re Mark W., 228 Ill. 2d 365, 374 (2008)).

The courts have also held that a GAL has a duty to consider society’s interests as well as the

minor’s. See In re B.K., 358 Ill. App. 3d 1166, 1171 (2005); In re R.D., 148 Ill. App. 3d 381,

387 (1986). Thus, although the court stated that Novak would represent the best interests of

the minors, the State had it exactlyright when it argued that, “a best-interest-oriented defense

counsel is not the same thing as a GAL, as counsel’s loyalties lay firmly and solely with his

-38-
juvenile client.” And that is exactly where Novak’s loyalties were. Novak stated that,”I have

duty to these two boys, nobody else.” So, even if the court erred in stating that Novak

represented the minors’ best interests, that in no way made Novak the equivalent of a GAL.

¶ 159 We can now turn to Novak’s statement to the court that was the entire basis for the

appellate court’s conclusion that Novak was the functional equivalent of a GAL and almost

the entire basis for the majority’s same conclusion. The majority focuses largely on the fact

that Novak stated that he, like the State, the court, and Austin’s parents, was seeking the truth

in this matter. To say the least, I find it very interesting that both Austin and the majority

seem to equate the word “truth” with Austin’s guilt. A defense attorney saying that he is

seeking the truth could not be more common. This does not mean that he is aligning 12

himself with the State. Truth is not the special province of the prosecution.

¶ 160 Notably, although Novak stated that everyone shared the goal of seeking the truth, he

never even hinted that he and the State had the same view of the truth, and his entire defense

case was built around trying to disprove the prosecution’s case. Novak stated that the boys

had consistently denied the allegations, that it was a contested hearing, that the defense

disputed the prosecution’s claim that Austin confessed, and that he had “grave doubts” that

the abuse occurred. Novak called two of Austin’s siblings and both of Austin’s parents to the

stand to testify that they either did not see any sexual activity or that they did not believe any

sexual activity had occurred. When Austin’s father testified, Novak elicited testimony that

Austin had not confessed any acts to the police. In his closing argument, Novak argued that

the State had not proved his clients’ guilt beyond a reasonable doubt. Novak argued that the

accusers had contradicted themselves, that they lacked credibility, and that their statements

were not worthy of belief. Clearly, the “truth” that Novak was trying to establish was that the

acts did not occur. The majority claims that “in context” the word truth refers only to

Austin’s guilt. Supra ¶ 98. If an entire defense case built around showing that the abuse did

not happen is not “context” then I do not know what is.

¶ 161 The majority also objects to Novak: (1) stating that Austin’s parents’ objective was to

learn the truth; and (2) eliciting testimony that the parents objected to child sexual behavior

and would want to put a stop to it if it was happening. This is yet another example of the 13

majority criticizing Novak for effective lawyering. As the majority’s own opinion

demonstrates (supra ¶¶ 53-55), Novak used these points to try to win an acquittal for Austin.

In his closing argument, Novak argued that, because Austin’s parents were opposed to child

sexual behavior “in the strongest possible terms,” and that they wanted to know if it was

In Johnnie Cochran’s opening statement in the O.J. Simpson trial, he stated that “we are

12

now embarked upon a search for justice, this search for truth, this search for the facts,” and “[y]ou

have this rare opportunity, it seems to me, to be participants in this search for justice and for truth”

(Emphases added.) http://articles.latimes.com/1995-01-26/news/mn-24705 _1_opening-statement.

Austin does not rely on Novak eliciting this testimony, nor does he make any argument 13

with respect to Novak’s closing argument. Again, in Givens, this court unanimously held that it is

not appropriate for a reviewing court to search the record for unargued and unbriefed reasons to

reverse a trial court’s judgment. Givens, 237 Ill. 2d at 323. It is not clear what has changed.

-39-
happening so that they could put a stop to it, the judge should find them credible when they

testified that they questioned Austin and Ricky and did not believe that the events had

happened. Clearly, the parents believed that the truth was that Austin and Ricky were

innocent, and Novak specifically argued that, because they were the type of people who

would put a stop to these acts if they were happening, the judge should be persuaded by the

fact the parents questioned Austin and Ricky over and over again and did not believe that any

abuse had occurred.

¶ 162 Novak was in a tough position, having to argue that the court should find Austin’s

parents credible. Obviously, the trier of fact will know that parents are biased in favor of their

children. Novak had to do something to boost the parents’ credibility. What else could he

have done? Does the majority believe that Novak would have been more effective simply

arguing, “they’re his parents; take their word for it”? The testimony that Novak elicited in

no way harmed Austin; its only effect was to allow Novak to make a more effective closing

argument. Does the majority honestly believe that Novak’s intention was anything other than

this? Again, not even Austin argued that this wholly proper defense strategy meant that

Novak was acting as a GAL. Once Novak’s statement prior to trial, and Novak’s questioning

of Austin’s parents, are put in their proper context, it is clear that saying that the parents

“want[ed] to know the truth” in no way made Novak the functional equivalent of a GAL.

¶ 163 The majority also finds fault with Novak for saying that he believed the acts needed to

stop if they had happened and that “[a]n intervention is not inappropriate by way of

government to help these boys if such things happened.” Of course Novak believed that the

child molestation should stop if it was occurring. He did not check his fundamental human

decency at the door when he agreed to represent Austin and Ricky, and this statement in no

way meant that he was not going to provide them with a proper defense. As for Novak’s

belief that an intervention by way of government was appropriate to help the boys if the acts

had occurred, how does that mean that Novak was not functioning as a defense attorney? A

lawyer’s job as advocate is to “zealously assert[ ] the client’s position under the rules of the

adversary system.” Illinois Rules of Professional Conduct of 2010, Preamble: A Lawyer’s

Responsibilities ¶ 2. There is no requirement that a defense attorney have the mindset that

state action is not appropriate if his client committed the crime. Surely the majority does not

believe that attorneys who represent people such as Richard Speck or John Wayne Gacy go

into trial with the belief that, even if their clients committed the crime, they deserve no

punishment. Here, it does not matter at all that Novak believed that a government

intervention was appropriate if the boys committed the crime if Novak did his job of

zealously asserting his clients’ position under the rules of the adversary system. His clients’

position was that they did not do the acts alleged, and Novak zealously asserted that position.

His entire defense case was built around showing that the acts did not happen, and he argued

to the court that the State had not established guilt beyond a reasonable doubt. The majority

notes that Austin argued that he was entitled to an attorney who: (1) gave him his undivided

loyalty; (2) zealously safeguarded his rights and confidences; and (3) acted in accordance

with his client’s wishes. Supra ¶ 63. Where is there any evidence that Novak failed to do

these things?

¶ 164 The majority also complains that, when Novak was explaining why he was representing

-40-
both Austin and Ricky, when he might not do so in an adult case, Novak stated that, “I don’t

view such a proceeding as adversarial as it might be if it were an adult case.” See supra ¶ 92.

But the majority agrees with Novak. The majority specifically states that, “a delinquency

trial is not as adversarial as a criminal trial.” Supra ¶ 86. Clearly, then, there is nothing in

Novak’s statement that rendered him the functional equivalent of a GAL, or that in any way

meant that he was not going to fulfill his role as defense counsel.

¶ 165 The only other thing that the majority points to in trying to make the case that Novak

functioned as a GAL rather than as a defense counsel is that Novak never attempted to

suppress Austin’s statement to the police. Notably, however, the majority refuses to say

whether it believes that such a motion would have had any chance of succeeding. And, if the

motion had no chance of success, then it is illogical to claim that Novak was not functioning

as defense counsel by failing to file it.

¶ 166 The appellate court concluded that such a motion likely would not have succeeded. 403

Ill. App. 3d at 682-83. The appellate court pointed out that in In re G.O., 191 Ill. 2d 37

(2000), this court upheld a 13-year-old juvenile’s confession as voluntary when he was

interrogated by the police, alone, at 3:30 a.m. The juvenile had been in custody for several

hours before the questioning commenced. This court held that the relevant factors to consider

are the respondent’s age, intelligence, background, experience, mental capacity, education,

and physical condition at the time of the questioning, the legality and duration of the

detention, the duration of the questioning, and any physical or mental abuse by the police,

including the existence of threats or promises. Id. at 54. The court also held that, when a

juvenile’s confession is involved, a significant factor to consider is whether the juvenile had

an opportunity to confer with an adult concerned with his welfare. Id. at 55. The G.O. court

held that the factors supported finding G.O.’s confession voluntary, even though he did not

have a concerned adult with him. Id. at 56-57.

¶ 167 The appellate court noted that the circumstances here are less extreme than in G.O.

Austin is three years older than G.O. was, he arrived at the Paxton police station voluntarily,

and he was questioned in the presence of his father. 403 Ill. App. 3d at 683. The majority

argues that Novak could have brought out the fact that Austin had a learning disability.

However, there is no indication that Austin had any trouble understanding the police’s

questions, and he had his father by his side the whole time. Even had this fact been brought

out, the factors would still clearly weigh in favor of finding the admission voluntary.

Moreover, we know for a fact that the trial court would have denied the motion. When

Austin’s subsequent attorney argued that Novak had been ineffective for failing to move to

suppress the statement, the trial court rejected the argument out of hand:

“With respect to the Motion to Suppress, I believe, the State’s comments are

correct. This was not a custodial interrogation. The Respondent Minor’s father was

there, and the testimony was quite clear that the interview was terminated in midsentence or in the middle of the interview by the father at the point that the Minor

was admitting in [sic] some misconduct, as alleged in this case. So, I don’t know how

it is ineffective [not] to file a Motion to Suppress under those circumstances. It was

not a custodial interrogation, and, in fact, the Minor and his father terminated the

questioning in mid-sentence practically.”

-41-
The State argued in the trial court that, “it is not ineffective assistance of counsel to choose

not to file a motion which had no merit and no hope of success.” I would add that failing to

file such a motion also does not mean that an attorneywas not functioning as defense counsel

in the case. Throughout its opinion, the majority refuses to give Novak the benefit of the

doubt about anything, and everything he did is portrayed in the worst possible light. From

the majority’s perspective, it cannot be that, as a veteran criminal defense attorney of 30

years’ experience, Novak knew that such a motion had no chance of success. Rather, it had

to be that he was functioning as a GAL instead of as a defense attorney.

¶ 168 Moreover, the defense’s position in this case was that Austin did not confess and

therefore there was no statement to suppress. While the law does allow someone to move to

suppress a statement that he denies making (see People v. Norfleet, 29 Ill. 2d 287, 289-91

(1963)), surely the majority can appreciate the practical difficulty, from a credibility

standpoint, of first arguing that your client confessed only because of overbearing police

conduct, and then presenting a case to that same judge that your client never confessed. Here,

it is entirely possible that Novak knew that the motion had no chance of success and that

there was no point in pursuing it, especially if he was going to present a case that there was

no confession. This has previously been the type of strategic decision that this court would

never second guess.

¶ 169 Now let us turn to a consideration of how Novak actually functioned in the case.

Although the majority failed to do so, it asserts that we must make “ ‘a realistic appraisal of

defense counsel’s professional relationship to someone other than the defendant under the

circumstances of each case.’ ” Supra ¶ 83 (quoting People v. Daly, 341 Ill. App. 3d at 376).

Here, Novak’s only professional relationship was as a defense attorney hired to represent the

misdemeanor allegations against Ricky and Austin. What are these other professional

relationships to which the majority refers? The majority also claims that the record contains

“strong evidence” that Novak was not acting as defense counsel in this case. Supra ¶ 101. 14

Really? Novak zealously pursued his clients’ position that they did not commit the charged

offenses. He cross-examined the State’s witnesses, he put on witnesses to dispute the State’s

version of events, and he forcefully argued that the State had not met its burden of proof.

That sounds like a defense attorney. Here, I would turn the majority’s statement around on

it and ask where is the “strong evidence” that Novak was functioning as a GAL in this case

or that he was “attempt[ing] to fulfill the role of GAL” (supra ¶ 86)? Where is there any

evidence that he was acting as the eyes and ears of the court, that he was betraying client

confidences, was more interested in the best interests of society, or went against his clients’

expressed wishes? The majority seems to suggest that, no matter how effective Novak was,

if it can find any examples of how he could have done a better job, this means that he was

functioning as a GAL. This is a complete non sequitur. In any criminal case, with the benefit

of hindsight and the pressure of trial off, a court can always find examples of things that an

The majority contradicts itself, however, by also stating that the record “clearly” shows 14

that Novakwasfunctioning as defense counsel. Supra ¶ 88. So, according to the majority, the record

contains strong evidence that Novak was not functioning as defense counsel, but it also shows that

he clearly was functioning as defense counsel. Which is it?

-42-
attorney could have done better. How is that in any way relevant to determining whether the

attorney was functioning as a GAL?

¶ 170 Let us also consider Novak’s most important strategic decision as defense

counsel—allowing the State to present the testimony of the accusers by way of videotape.

Although the majority does not rely on this as support for its conclusion that Novak was not

functioning as a defense attorney, this was a principal reason that Austin argued both that

Novak was ineffective and that Novak was so conflicted in executing both the role of GAL

and defense counsel that reversal was required without proof of prejudice. This is another

example of Novak being criticized for effective lawyering.

¶ 171 Novak conceded that he was giving up Austin’s and Ricky’s right to cross-examine the

accusers, but he explained that he had two strategic reasons for doing so: (1) videotaped

testimony is less persuasive than live testimony; and (2) if Novak agreed to proceed this way,

the State would agree to recommend probation if the minors were adjudicated delinquent.

One only needs to review the testimony of the accusers as set forth in the majority opinion

to see what a smart choice this was. On the videotape, the accusers both contradicted

themselves and told stories that came across as ridiculous on their face. By proceeding by

way of videotape, Novak already had the accusers coming across as less than credible, and

he was giving the State no opportunity to rehabilitate them. And Novak’s strategy worked

flawlessly. As the majority concedes, the trial court found that Willie was not credible,

Jonathan was only slightly more credible, and that Dillon’s testimony was “suspect.” Thus,

the trial judge found that the testimony, by itself, was insufficient to support an adjudication,

and he acquitted Ricky entirely. And, as the judge explained, he adjudicated Austin 15

delinquent only because he found that his admission to one of the acts was proved beyond

a reasonable doubt and that the admission, together with the State’s other evidence, was

sufficient to adjudicate Austin delinquent. The clear implication of the trial court’s 16

statement is that, had Austin not confessed, he would have been acquitted too.

¶ 172 Austin argues that, had Novak not agreed to allow the State to proceed by way of

videotape, he could have eroded the credibility of his accusers through cross-examination.

But their credibility was already eroded to the point that it was insufficient, by itself, to

support a delinquency adjudication. What more could Novak have hoped to achieve? The far

greater risk, as he explained, was that the accusers would come across as more credible and

believable in court. Also, Novak would have run the risk that, after being prepared to testify

by the State, the accusers would no longer contradict themselves or tell unbelievable stories.

The State explained as much at the hearing on Austin’s motion for a new trial:

“So, Attorney Novak was confronted with a decision of allowing that in as

checkered as it was or requiring us to put on those witnesses. Your honor, I submit

One suspects that Ricky is not losing too much sleep over the constitutionally defective 15

assistance of counsel he received from Novak.

The act that Austin admitted to was letting Dillon perform oral sex on him. This act was 16

corroborated by Dillon’s testimony.

-43-
that, if we put on those witnesses that could have, that could have resulted in even

more damning evidence against Ricky M[.] and Austin M[.] and could have put us

in a position to cure the inconsistencies, which were apparent in the videos.”

¶ 173 Novak’s decision was clearly wise from a strategic standpoint, and it also shows that he

was acting as a defense counsel and not as a GAL. Again, he allowed the State to present

testimony that was contradictory and, in many instances, unbelievable on its face. This could

only have been a good thing as far as seeking an acquittal was concerned. If he were really

just interested in finding out exactly what happened, because of a duty to society, he

obviously would have wanted to have the accusers testify in court so that he could probe all

of the inconsistencies in their stories and try to get to the bottom of what really happened,

even if that meant that they came across as credible and his clients were adjudicated

delinquent. But that is not what happened, because Novak was a defense attorney seeking an

acquittal.

¶ 174 The second part of Novak’s strategy worked when Austin received a sentence of

probation. Again, the State promised to recommend a sentence of probation in exchange for

Novak allowing the State to present the accusers’ testimony by way of videotape. The trial

judge explained that he was sentencing Austin to probation only because he felt bound to

honor the agreement that Novak entered into with the State. He felt bound because he had

not explained on the record that he would not be bound by the agreement. The clear import

of the trial court’s words is that he would have preferred to give Austin a more severe

sentence. So, both of Novak’s strategic decisions for allowing the State to proceed by way 17

of videotape came into play, and both of Novak’s strategies worked out exactly as he had

planned.

¶ 175 To sum up, then, when Novak was hired to represent Austin and Ricky, they stood

accused of committing multiple sex offenses against multiple victims. Directly as a result

of the strategic decisions Novak made as defense counsel, Ricky was acquitted entirely, and

Austin was adjudicated delinquent only because he admitted to one of the acts that Dillon

accused him of. Austin then received a sentence of probation, when the trial judge clearly

believed that he should receive a more severe sentence, again solely because of a strategic

decision made byNovak. And this is what a majority of the Illinois Supreme Court considers

to be a complete denial of counsel in one’s defense. Forsome reason, in considering whether

Novak functioned as a defense attorney in this case, the majority focuses not at all on the

strategic decisions that Novak made that worked flawlessly, but only on a strategy that he did

not pursue that had no chance of succeeding.

By the time Austin was sentenced, a sex offender evaluation had been completed and the 17

social worker who completed the evaluation determined that Austin was a high risk to reoffend and

that he identified strongly with many of the characteristics of psychopathy or antisocial behavior.

Based on this evaluation, the probation officer who completed the presentence report recommended

that Austin be remanded to the Illinois Department of Corrections and ordered to a residential sex

offender treatment facility.

-44-
¶ 176 III. The Effect of Today’s Decision

¶ 177 Perhaps realizing the potentially enormous can of worms it has opened with its automatic

reversal rule, the majority takes pains at the end of its opinion to limit the scope of its

decision. The court throws in the phrases “[b]ased on the facts of this case” (supra ¶ 101) and

“under the specific facts of this case” (supra ¶ 111) when describing its holding. This court,

however, does not issue fact-specific Rule 23 orders. We take questions of general

importance and issue binding, precedential opinions for all courts in this state to follow. In

this regard, Justice Scalia’s observation on the proper role of the Supreme Court vis-a-vis all

lower courts seems equally applicable to the role of this court vis-a-vis the lower courts of

Illinois:

“The Supreme Court of the United States does not sit to announce ‘unique’

dispositions. Its principal function is to establish precedent—that is, to set forth

principles of law that every court in America must follow. As we said only this Term,

we expect both ourselves and lower courts to adhere to the ‘rationale upon which the

Court based the results of its earlier decisions.’ Seminole Tribe of Fla. v. Florida, 517

U.S. 44, 66-67 (1996) (emphasis added). That is the principal reason we publish our

opinions.” United States v. Virginia, 518 U.S. 515, 596 (1996) (Scalia, J., dissenting).

¶ 178 And what are these “specific facts” to which the court refers? The record shows that

Novak performed effectively as defense counsel, employing strategies leading directly to an

acquittal for one client and a sentence of probation for the other, but the majority holds that

the client who received probation is entitled to an automatic reversal and a new trial, with

no showing of prejudice, simply because it found evidence in the record that the attorney had

a best interests “mindset” or tried the case with the wrong “tone.” Surely my colleagues do

not mean to suggest that they would deny the same relief to the next juvenile adjudicated

delinquent who can point to evidence in the record showing that his attorney had a best

interests mindset. And there is no question that, in any other similar case that comes before

the courts, the attorney will have been less effective than Novak. You cannot get much more

effective than obtaining an acquittal for the client who did not confess and a sentence of

probation for the one who did. The majority must realize that every recently adjudicated

juvenile will have his or her attorneyscouring the record for the words “best interests” so that

he or she may also obtain the automatic reversal and new trial to which the law now entitles

them. Is there some principle under which my colleagues believe that they could grant Austin

relief, but then deny that same relief to everyone else? If they believe that this decision is sui

generis, then it is incumbent upon them to explain how, as the lower courts will have to

begin applying this decision.

¶ 179 IV. Corpus Delicti

¶ 180 Before concluding this dissent, Iwish to brieflyaddress the argument ofJustices Freeman

and Karmeier that this court should reverse on corpus delicti grounds. I will set forth three

reasons why this court should not reverse on that basis. Each of these three reasons is, by

itself, sufficient to defeat a corpus delicti argument, and, taken together, they leave no room

at all for a reversal on that basis.

-45-
¶ 181 First, Austin has not made a corpus delicti corroboration argument, a fact that neither of

the specially concurring justices acknowledges. Austin does argue that the evidence was

insufficient, but his argument is simply that the victims were not credible and that his

confessionwas unreliable. Austin also incorporates Justice Appleton’s appellate court dissent

by reference, and Justice Appleton did not argue corpus delicti either. See 403 Ill. App. 3d

at 687-88 (Appleton, J., dissenting). Moreover, it is entirely clear that this was not a mere

oversight but rather a conscious decision by Austin not to raise this argument. How do we

know? Two reasons. First, the argument appears in the record and was thus available to be

raised on appeal. The attorney whom Austin’s parents hired to replace Novak at the hearing

on the motion for a new trial made the argument that Austin’s confession was not sufficiently

corroborated. The attorney never used the words “corpus delicti,” instead incorrectly

referring to it as a “burden shifting” argument, but the corpus delicti argument is there in

substance. Second, the State, in its appellee’s brief before this court, made a preventative

corpus delicti argument. The State noted that defendant had not argued corpus delicti, but,

since the case involved a confession, the State chose to explain why there was no corpus

delicti issue. What did Austin argue in his reply brief in response to the State’s corpus delicti

argument? “The minor relies on the arguments contained in his original brief.” So, even

though the argument appeared in the record, and even though the State addressed the

argument in its response brief, Austin refused to make a corpus delicti argument. Given this,

why would this court raise the argument sua sponte for Austin and reverse on that basis?

¶ 182 Again, in Givens, 237 Ill. 2d at 323-30, this court addressed the propriety of a reviewing

court proceeding in such a fashion. Givens clearly held that, “other than for assessing subject

matter jurisdiction, ‘a reviewing court should not normally search the record for unargued

and unbriefed reasons to reverse a trial court’s judgment.’ ” (Emphases added.) Id. at 323

(quoting Saldana v. Wirtz Cartage Co., 74 Ill. 2d 379, 386 (1978)). This court noted that it

follows the principle of “party presentation,” and explained that courts “ ‘do not, or should

not, sally forth each day looking for wrongs to right.’ ” Givens, 237 Ill. 2d at 323-24 (quoting

Greenlaw v. United States, 554 U.S. 237, 243-44 (2008)); see also People v. White, 2011 IL

109689 ¶ 153 (admonishing the appellate court that reviewing court justices should not be

“free rangers riding about the legal landscape looking for law to make”). This court further

noted that raising issues on behalf of a party would “ ‘transform this court’s role from that

of jurist to that of advocate.’ ” Givens, 237 Ill. 2d at 324 (quoting People v. Rodriguez, 336

Ill. App. 3d 1, 14 (2002)). Thus, this court held that the appellate court in that case erred in

reversing the defendant’s conviction on the basis of an argument that the defendant was not

making. Givens left open the possibility that, in certain limited cases, it may be appropriate

to reverse on a basis that the defendant was not arguing. However, that would only be in a

case involving an obvious error controlled by clear precedent. Givens, 237 Ill. 2d at 326-29.

That is clearly not the case here, as I will explain more fully below. Under no possible

circumstances is this a situation where there is an obvious error controlled by clear

precedent.18

One of the reasons that we gave in Givens for why we do not raise arguments sua sponte 18

on behalf of parties is that it deprives the parties of an opportunity to be heard and requires

-46-
¶ 183 The second reason this court should not reverse on corpus delicti grounds is perhaps the

most obvious: there is simply no corpus delicti problem in this case. Justice Freeman

correctly sets forth the black letter corpus deliciti law, so I will not repeat all of those

principles here. As he correctly notes, Austin’s guilt could not have stood solely on his naked

confession. Rather, theremust have been corroborating evidence tending to establish that the

crime occurred. The act that Austin confessed to was allowing Dillon to perform oral sex on

him. This confession was corroborated in the strongest way possible: Dillon testified that he

performed oral sex on Austin. This is textbook corpus delicti corroboration. That is end of

the ball game; there is nothing more to say.

¶ 184 Justice Freeman writes that, “convicting a defendant solely on the basis of a confession

directly contradicts the corpus delicti requirement.” Supra ¶ 121 (Freeman, J., concurring in

part and dissenting in part). There is nothing wrong with this statement, except that it is

wholly inapplicable to this case. This is a direct quote from the trial court’s order

adjudicating Austin delinquent:

“This is also, with respect to Austin, a case in which the respondent minor’s

admission has been proved beyond a reasonable doubt and, together with the State’s

other evidence, is sufficient to meet the State’s burden.” (Emphasis added.)

The trial judge did not find the corroborating evidence sufficient, by itself, to establish

Austin’s delinquency beyond a reasonable doubt, but the corroborating evidence does not

have to do so. As Justice Freeman concedes, “ ‘the independent evidence need not establish

beyond a reasonable doubt that an offense did occur.’ ” Supra ¶ 118 (Freeman, J., concurring

in part and dissenting in part) (quoting People v. Willingham, 89 Ill. 2d 352, 361 (1982)).

Thus, there is simply no corpus delicti problem.

¶ 185 The final reason that Justices Freeman and Karmeier’s corpus delicti argument is

incorrect is that it would require this court to ignore both the trial court’s credibility finding

and the trial court’s interpretation of its own credibility finding. Before explaining why this

is so, I must briefly note that the law is not clear in Illinois, or elsewhere, as to what extent

witness credibility should come into play in determining whether a confession is sufficiently

corroborated. For instance, Justice Freeman cites an Ohio appellate court case that said that

“competent and credible evidence” must support the defendant’s confession. Supra ¶ 120 n.7

(Freeman, J., concurring in part and dissenting in part) (citing State v. Puckett, 2010-Ohio6597, ¶ 15, 947 N.E.2d 730 (Ct. App.)). However, another panel of the Ohio appellate court

more directly addressed the question of witness credibility the following year, albeit in an

unpublished decision. That panel of the Ohio appellate court, in addressing the defendant’s

argument that her confession was not sufficiently corroborated, specificallyheld that witness

speculation as to what their arguments would have been. Givens, 237 Ill. 2d at 324. Although, as

noted, the State made a preventative corpus delicti argument, the State obviously would have no way

of knowing that members of this court were contemplating adding a witness-credibility component

to the corroboration rule, so the State did not weigh in on that point. If this court were to add such

a requirement, the time to do so would be in a case in which it was properly raised by the defendant

and fully briefed by both parties.

-47-
credibility goes only to the weight of the evidence and is not relevant for purposes of the

corpus delicti rule. State v. Wright, 2011-Ohio-5641, ¶ 10 (Ct. App.). Thus, the law in Ohio

is far from settled.

¶ 186 Between them, Justices Freeman and Karmeier cite three Illinois cases, but only one of

them, People v. Hubbard, 38 Ill. 2d 104 (1967), even touches on the issue. People v. Rivera,

2011 IL App (2d) 091060, ¶ 41, is cited for the proposition that the State’s corroborative

evidence must “inspire belief in the defendant’s confession.” According to Justice Karmeier,

the State’s independent evidence failed in this regard. Supra ¶ 126 (Karmeier, J., concurring

in part and dissenting in part). But what could inspire more belief in Austin’s confession than

that the victim testified to the exact same act to which Austin confessed? Certainly the fact

that the victim testified to the exact same act that Austin confessed to does not give us less

confidence in Austin’s confession. Similarly, Justice Freeman cites People v. Furby, 138 Ill.

2d 434, 451 (1990), for the proposition that the independent evidence must be consistent

with the confession and tend to confirm or strengthen it. That is a perfect description of what

we have here: Austin confessed to having Dillon perform oral sex on him, and Dillon

testified to performing oral sex on Austin. Dillon’s testimony is consistent with Austin’s

confession and both confirms and strengthens it.

¶ 187 That leaves only Hubbard, a 45-year-old case that is so obviously a relic of another era

that it should probably not be cited for anything. In that case, this court independently

evaluated the testimony of the complaining witnesses relevant to the incident at hand and

noticed contradictions and unexplained gaps in their testimony, and ultimatelyconcluded that

their testimony was “so weak as to defy belief.” Hubbard, 38 Ill. 2d at 110. Thus, the court

found that the confession was not sufficiently corroborated. There are several problems with

Hubbard. First, it predates the United States Supreme Court’s decisions in In re Winship, 397

U.S. 358 (1970), and Jackson v. Virginia, 443 U.S. 307 (1979), and this court’s opinion in

People v. Collins, 106 Ill. 2d 237 (1985). Thus, the standard of review we applied was

different. Among other things, Hubbard did not acknowledge a duty to view all of the

evidence in the light most favorable to the prosecution, did not state that we may not

substitute our judgment for the trier of fact on credibilitymatters, and applied an old rule that

this court reviewed the evidence in rape cases differently than in other criminal cases. Thus,

this court engaged in its own weighing of the evidence and made its own credibility

determination and simply declared that the two women who testified to being raped at the

hands of the defendant were unworthy of belief. Thus, this court held that the defendant’s

admission to raping the two women was not sufficiently corroborated. Hubbard, 38 Ill. 2d

at 109-11. It is impossible to believe that Hubbard would be decided the same way today.

Indeed, our standard of review would forbid it. Moreover, it is questionable whether

Hubbard lasted even five years. In People v. Springs, 51 Ill. 2d 418, 425-26 (1972), this court

clarified that its duty to carefully examine the record in rape cases did not mean that the court

could “encroach upon the function of the jury to weigh credibility and otherwise assess the

evidence presented in the course of the trial.” See also People v. Reese, 54 Ill. 2d 51, 57-58

(1973) (same).

¶ 188 Assuming that Hubbard even survived Springs and Reese, the most that it can be said to

stand for is the proposition that when the corroborating evidence is “so weak as to defy

-48-
belief” it amounts to no corroboration at all. That is clearly not what the trial court found

here. Justice Karmeier states that the trial court “never found the testimony of the minors to

be credible” (supra ¶ 126 (Karmeier, J., concurring in part and dissenting in part)), and

Justice Freeman states that the trial court “found the testimony of the minors not to be

credible” (supra ¶ 121 (Freeman, J., concurring in part and dissenting in part)). However, the

only witness that the trial court found completely lacking in credibility was Willie. The trial

court specifically found Jonathan slightly more credible than Willie and said with respect to

Dillon only that his testimony was “suspect.” And with respect to each, he specifically listed

those matters that he thought their testimony was suspect on. Then, the trial court said that

the testimony of the minors was sufficient to convince him that something had probably

happened, but that it fell short of the reasonable doubt standard. Obviously, then, the trial

court did not find the victims completely lacking in credibility, let alone that their testimony

was “so weak as to defy belief.” Otherwise, he would not have been convinced by their

testimony that something probably happened.

¶ 189 This matter was specifically brought to the trial court’s attention during the hearing on

Austin’s motion for new a trial, and the trial court explained that it did not find the victims

completely lacking in credibility. Defendant argued at that hearing that Austin’s confession

was not sufficiently corroborated because of the trial court’s credibility finding, and the trial

court responded that, “I also found the State introduced evidence sufficient to prove that

something probably happened but not beyond a reasonable doubt. That’s corroborative isn’t

it?” To which Austin’s attorney replied, “That’s somewhat corroborative, but as I said, I

don’t believe it meets the standard of proof beyond a reasonable doubt.”19

¶ 190 Clearly, then, the trial court did not find the victims completelylacking in credibility. Just

as we may not substitute our judgment for that of the trial court on matters of witness

credibility, we should not substitute our judgment for that of the trial court on how to

interpret the court’s own credibility finding. Even Austin’s attorneyagreed that the evidence

was corroborative, but argued that it fell below the reasonable doubt standard. But, as we

have already established, the corroborative evidence does not need to meet that standard. So,

while the specially concurring justices may believe that the victims were completely lacking

in credibility, that is clearly not what the trial court found, and we may not substitute our

judgment for the trial court’s on this matter.

¶ 191 In sum, there is simply no corpus delicti problem in this case, and Austin has not even

contended that there is. The specially concurring justices provide no more of a valid basis

to reverse Austin’s adjudication than does the majority.

¶ 192 V. Conclusion

¶ 193 I agree entirely with my colleagues’ conclusion that Austin was entitled to the assistance

of counsel in his defense. Unlike my colleagues, however, I believe that this is exactly what

Austin received. The record shows beyond all doubt that Novak was never appointed as GAL

Austin’s replacement attorney’s concession that the confession was corroborated may be 19

one reason why he chose to forgo raising that argument on appeal.

-49-
and never attempted to fulfill that role. He fulfilled only one role—that of defense

counsel—and he did so quite well. There is no support at all for the majority’s conclusion

that Novak “was not acting as defense counsel.” Supra ¶ 101. I express no opinion on

whether a per se conflict of interest exists when an attorney functions as both defense

counsel and GAL, as that issue is not before the court. I note that the points I have raised in

this dissent stand entirely unrebutted by the majority.

¶ 194 My colleagues’ desire to reach the issue as briefed by Austin is certainly understandable.

Whether a defense attorney can act as both GAL and defense counsel is an important issue

worthy of this court’s attention. Whether Novak properly performed his role as defense

counsel in this particular case is not an important issue that demands this court’s attention.

It is certainly unfortunate that the appellate court made this case about something that it is

not. All of that said, this court must adjudicate the case that is before it, and we should not

overreach and issue an advisory opinion simply because we want to decide an issue. It is not

even arguable that this case presents the question of whether an attorney may serve as both

GALand defense counsel, and this court should have rejected Austin’s claim as an improper

request for this court to issue an advisory opinion on a set of facts not before the court.

Moreover, the majority’s criticisms of Novak are truly regrettable given that he did

absolutely nothing wrong and functioned as an entirely effective defense counsel for his

clients.

¶ 195 I dissent.

-50-