## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Suprem e Court

People v . Aust in M. , 2012 IL 111194

Caption in S upreme Court: THE PEOPL E OF THE STATE OF I L L I NOI S, Appellee
, v. AUSTI N M., a Minor, Appe llant.

Docke t No. 111194

Filed Aug ust 30, 2012

Held ( Note : Thi s syl l abus

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo r t er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n delinqu ency proce eding s, there is a per se conflict of interest calling for reve rsal if a minor’s attorney functions s i multaneously as defe nse

couns el and g uardia

n ad litem ; and a misdemeanor adjudication for criminal sexual abuse was reve rsed wher e the fac ts in the rec ord showed that reta ined defe nse counsel had so functioned, even though he was

never appointed as g

uardia n.

Dec ision Under Review Appea l from the Appellate Court for the Four th Di s t ri ct ; hear d in that
court on appea l from the Circuit Court of For d County
, the Hon. Stephen R. Pacey , J udg e, pre siding.

J udg ment J udg ments reve rsed.
Cause re manded.Counsel on

Appea l Michae l J

. Pelletier, State Appellate Def ender
, Kar en Munoz, Deputy Def ender
, and J acque line L

. Bul la r d
, A s s istant Appellate Def ender
, of the Offic e of the State Appellate D efe nder, of Springf ield, for a ppellant.

L isa Madig an, Attorney Gene ral, o f Springf ield, and Matthew Fitton, State’s Attorney
, of P ax ton (Michae l A. Scodro, Solicitor Gene ral, and Michae l M. Glick and Erin M. O’Connell, Assistant A ttorney s Gene ral, of Chicag o, of counse l), for the People.

C at hry n Crawf ord, of Chicag o, for amicus curiae Children and Family J ustice Center

.

Marsha L evik, Riy a Saha Shah and Tiffa ny Price, o f P hiladelphia, Pennsy lvania, for amicus curiae J uvenile L aw Cente r.

Br uce A. Boy er, of Chicag o, for amicus curiae L oy ola Civitas ChildL aw Center.

Mary Ann Scali and Nadia Seeratan, of Washington, D.C., for amicus curiae National Juvenile Defe nder Cente r.

J ustices J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
Chief J ustice Kilbride and J ustices Gar man and Theis concur

red in the judgme nt and opinion.
J ustice F ree man conc urre d in part and dissente d in part, with opinion.
J ustice Ka

rmeier concur red in pa rt and dissented in pa

rt, with opinion.
J ustice Thomas dissented, w ith opinion.

OP INION

¶ 1 Austin M. was adjudicated a delinquent minor afte r he w as found g uilty of t he offense of criminal sexual abuse (720 I L CS 5/12-15 (West 2006) (now 720 I L CS 5/11-1.50(b)) ). Austin appea led his adjudication and the appellat e court aff irmed, with one justice dissenting. 403 I ll. App. 3d 667. ¶ 2 W e gra nted Austin’s petition for leave to appea l. Be fore this court, Austin raises fo u r issues: (1) whether the leg al repr esenta tion he rec eived at his delinquency trial amounted to

a denial of his rig ht to counsel as g uara nteed by the J uvenile Court Act and b y t h e d u e

-2-proce ss clau s es o f the United States and I llinois constitutions; (2) whether he rec eived

ineffe ctive assistance of counsel beca use his attorney labore d under a per se and/or actua l conflict of interest; (3) whethe r he rec eived ineffe ctive assistance of counsel beca use of

cer tain acts and omissions by his attorney ; and (4) whether he was proved guilty bey ond a

rea sonable doubt. ¶ 3 For

rea sons that follow, we re verse the judg ments of the cour ts below.

¶ 4 I . Ba ckg round ¶ 5 I n Aug ust 2006, For d County State’s Attorney Anthony L ee filed delinquency petitions
ag ainst Ricky M., ag e 15, and Austin M., ag e 16, char g ing them with misdemeanor criminal sexual abuse. I t was alleg ed in the petitions that betwee n J uly 14, 2005, and J uly 14, 2006, Ricky and Austin had eng ag ed in acts of fellatio and had fondled the sex org ans of eac h other and two boy s, Dillon L
., ag e 10, and J onathon L
., ag e 12, wh o h ad been foster children 1 living in the M. family foster home. Ricky and Austin wer e tried at a joint delinquency trial, which commence d on J anuar y 19, 2007, and was continued to Apri l 3
, 2 0 0 7

. The boy s’
pare nts, J ames (Ji m) and Rebec ca (B ecky ) M., hired an attorney to repr esent both Ricky and Austin at trial. ¶ 6 At a September 25, 2006, pretria l hear ing, the court inquired whether the attorney whom Mr. and Mrs. M. had hired was a ppear ing on be half of the boy s as well as the pare nts. The attorney replied, “ Ithink the minors, J udg e.” The court then admonis hed Mr. and Mrs. M. as follows:
“At this point, [t he attorney ] is enter ing an appea ranc e for y our sons only

. So, he
repr esents them and does not repr esent y ou. He repr esents what’s in the best interest of these Minors, which may or may not be what the Minors or the pare nts think is in their best intere st.” ¶ 7 The court also admonished the pare nts that, if the alleg ations in the delinquency petitions
ag ainst their sons wer e proven bey ond a rea sonable doubt, the boy s co u l d b e p l aced on probation, re moved from the home and placed in a public or private f acility , or committed to the I llinois Depa

rtment of Juvenile Corrections. The c ourt then aske d: “Any questions reg arding the basic rig hts of these proce eding s, Mr. and Mrs. [M.] ? ” ¶ 8 T ri al beg an on J anuar y 19, 2007. At the outset of trial, the boy s ’ at t o rn ey m ad e a statement to the court, explaining his rea sons for simult aneously repr esenting both responde nts. He also informed the court of his decision to permit the State to p re s en t videotaped statements of the alleg ed victims, Jonathon a nd Dillon, a

nd a third foster child, Wil lie C., ag e 5, in lieu of live c ourtroom testimony . He state d:

“I have proce dural points—I ag ree d to proce eding
, and I t hink in a unique, at least, a new wa y i n o n e respect or two respe cts—and I wanted to explain my

T hro ughout the re cor d, the al le ged victi m is ide nti fi ed as D.L. or “Dylan. ” However, when 1 D.L. was videot ape d, he was asked to spe ll his name and he s pel le d it “D- I

- L- L- O- N.” T her ef ore , thi s s pel li ng will be use d he re

.
-3-decisions o n the rec ord and explain why I believe that’s in my client’s [ sic ] best interest. THE COURT: That’s f

ine. [Defense Counsel] : Yea

h, I had, J udg e. I first of all have ag ree d with Mr. L ee [t he
prosec utor] to proce ed. We have three witnes s es that are children; Wil lie [C .], J onathon [L .] and Dillon [L .], and I have ag ree d with Mr. L ee that I am g oing to not oppose thei r t estimony by way of video tape, J udg e, a couple video tapes made in J uly , and one ma de in Octobe r I believe.
I am comforta

ble doing that in this case

. I say that there —I want to make it clea r; my clients have consistently denied the alleg ations that are being made by these complai n t s an d to the extent—with one exception. There was a claim on the admission on the part of Austi n, which we dispute, but they have d en i ed thi s. This is a contested he aring

. Neve rtheless, this is a juvenile hear ing. I have talk ed t h i s over pretty car efully with my clients, as well as with their pare nts, and I been [ sic ] a lawy er for near ly 30
y ear s, and I am comforta

ble with this in this case beca use we want to know the truth is ultimately the view of t h e p ar en t s

. I f something along the nature of these alleg ations, which are acts of sexual penetr ation involving children here
, but my cl i en t s ar e 15 and 16 y ear s old and the victims are 10 and 12 y ear s old at t he ti m e. And I think our, at that time, attitude is we have g rave doubts these things occur red. The boy s deny they occur

red, but I think the pare nts and I ag ree —I think with Mr. L ee as well—that if such acts happene d, then it needs to stop. An intervention is not inappropriate by way of g overnme nt to help these boy s if such things happene d. You know, so. We are on the same pag e, and we don’t want to cause trauma to any body

. I have a duty to these two boy s, nobody else. But we are , we are not—we are seeking the t ruth this here [ sic ] the s ame as the C ourt and the same as the prosecutor is our position. And I am comforta ble with proce eding by way of the video tape as opposed to requiring these y oung children to c ome into Court at this hearing , and obviously there is pluses and minuses, I suppose, for both sides. We a re g iving up our rig ht to confr ont these witnesses in Court.
THE COURT: Iassume, that’s the c ase. The re is no c ross-examination by y ou. [Defense Counsel] : No, there won’t be. A nd we dispute their a lleg ations.
THE COURT: Iunderstand. [Defense C o u n s el ] : And on the other hand, Mr. L ee is g iving up the ability to have live testimony which tends to be more persua sive than video tape. Bottomline, I am comfortable with it. The other decision that I made here
, J udg e, that I want

ever y body to be clea

r on, and I want to explain, is I am repr esenting two clients here
, and ordinarily
, if this wer e an adult case —I cannot imag ine—it is extremely rare I would contest a hear ing attempting to repr esent two individual clients that deser ve the benefit of i ndividual repr esenta tion, separ ate consideration, and the alle g ations

are kind of—they

are pretty

widespre ad.

-4-We are talking about a y ear ’s period of time and talking about differ ent possible alleg ed acts of differ ent kinds. Neve rtheless, I think in a juvenile hear ing wher e it is

a misdemeanor alleg ation, wher e it is a judge proce ed i n g as o p posed to a jury
proce eding
, I am fully capa ble of handling this, and wher e I believe the—I don’t view such a pr ocee ding a s adver sarial a s it mi g ht be if it were an adult ca se. I view this as a truth-see king proce ss on all parts. I explained this to the pare nts, I think they are comforta

ble with me being a lawy er for both kids. They ag ree it is in the best interest and benef icial t o ever

y body that I continue to repr esent both, but I wanted to sa

y that on the re cord, Judge

. Now, if the Court or prosec utor has any problem with me doing that, y ou know, I am rea dy to hear thoughts. I am comforta ble with being a lawy er for both and comforta ble with proce eding with the testimony by way of video tape. Thank You.” ¶ 9 T h e b o y s ’ attorney also informed the court that, in exchang e fo r p er m i t t i n g t h e prosec ution to prese nt videotaped statements of the three foster children, the State had ag ree d
to ask for a sentenc e of probation rathe r than commitment to the Depa rtment of J uvenile J ustice, in the event that the boy s be found g uilty

. The court asked J im and Be cky M. if they understood this compromise, but did not consult Austin or Ri cky

. ¶ 10 T h e m at t er then proce eded to trial. The State prese nted two live witnesses, Serge an t Robert Yates, a police office r in the Pax ton police depar tment, and Sheree Fo l ey , a ch ild protec tive investiga

t o r wi t h the Depa

rtment of Children and Family Service s (DCFS) in Ur bana, I llinois

. The only other evidenc e prese nted was the videotapes of Sheree Foley ’s interviews of

Dillon, J onathon and Willie. ¶ 11 The first witness was Serg eant Yates, who testified that he beca me involved in this case when Sheree Foley
, a DCFS worke r, came to the Pax ton police station on J uly 14, 2006, and informed him of her investigation into a rep o rt o f sexual abuse. Yates said he and another

o ff i ce r, Captain Cornett, acc ompanied Foley to the foster home where the abuse alleg edl y took place. F oley

remove d two foster children who wer e li ving there, Jonathon L ., ag e 12, and Wil lie C., ag e 5, and broug ht them to the Pax ton police station. Yates testified that, afte r Fo l ey interviewe d J onathon and Wil lie, the Pax ton police depar tment contac ted J im and Be cky M., who then broug ht their sons, Austin and R i ck y , t o t h e police station for questioning. ¶ 12 Yates also testified th at h e wa s p re s en t wh en P ax t o n P o l i ce Chief Robert B ane questioned Austin and Ricky individually

. Yates rec alled that Ricky was interviewe d first and that Chief Ba

ne t o l d R i cky that he was being acc used of “inappr opriate behavior ,” “inappr opriate touc hing,” and “c oerc ing othe rs to perf orm oral se x .” Yates said that R icky
appea red e x tremely

nervous, but denie d any

wrong doing. 2 ¶ 13 Yates f

urther te stified that when Chief B ane questioned Austin, Austin was first aske d
to si gn a fo rm i ndicating that he had been advised of his Miranda rig hts and that Austin’s

Yat es te st if

ie d tha t the int er views wit h Aust in a n d Ric ky wer e ta pe- re cor ded
, but no 2

re cor din gs were in tr oduc ed a t t ri al

.

-5-fathe r, J im M., who was prese nt during both interviews, signe d the same form as a witness.

There afte r, Chief Ba

ne advised Austin, a s he had with Ricky
, that he was being acc used of “inappr opriate touching ” and “per forming oral sex.” Yates testified that Austin, like Ricky
, denied doing these things. Howeve r, h e s ai d t h at Chief Ba ne continued to ask Austin the same questions over and over ag ain i n a way that made it clea r that he did not believe that Austin was telling the tr u t h

. I n response to this repe ated questioning, Austin said he let Dillon “suck his dick.” Yates said Austin’s fathe r immediately interrupted, stating that they wanted to spe ak to a law y er a nd Austin’s interview wa s then conc luded. ¶ 14 Def

ense counsel made no objections to any of Yat es ’ d i rec t testimony

. Howeve r, on

cross-e x amination the following colloquy took place: “[Defe nse Counsel] : You wrote a written repor t, y ou are holding that i n y our hand? [Yates] A. I t’s my

repor t, sir. Q. Okay . Iam taking it, y ou are kind of using that report to— A. To re call. Q. —to reme mber what happene d? A. That is cor

rec t. Q. And that’s be en a f

ew 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 repor t transmitted by the Ver

milion County DCFS on J uly 14, 2006. Acc ording to this repor t, Dillon L
., ag e 10, who had been a foster child in the M. foster home from Aug ust 2005 throug h J une 2006, alleg ed that he had been sexually abused

on sever al occasions while he wa s living there

. The alleg ed perpetrators of t he abuse wer e Ricky M. and Austin M., the foster pa rents’ sons. ¶ 16 Foley testified that, althoug h Di l l o n wa s n o l o n ger living in the M. foster home, she decide d to visit the foster home the same evening she rec eived the repor t beca use two other foster children—Jonathon L

. and Wil lie C.—were living in the home. Foley said she notified the Pax ton police depar tment of her i n v es t i gat ion and two Pax ton police office rs

acc om p an i ed h er to the foster home. Foley remove d J onathon and Wil lie from the foster home and transporte d them to the Pax ton police station, wher e she then interviewe d the two boy s. ¶ 17 When asked about that i n t er v i ew , Fo l ey , without any objection by defe nse counse l, stated:
“I interviewe d both boy s, and I g ot enoug h information to kno w that these children neede d to be interviewe d at the CAC due to the alleg ations and the ty pe of alleg ations we did not want to g o on interviewing them in the police station. So at that time when we had informati o n from the boy s that sexual abuse had—sexual abuse did occur in the home, that [ sic ] Pax ton PD broug ht in the two boy s, older boy s to interview them, Ricky

and Austin.” ¶ 18 At about 10 p.m. on J uly 14, 2006, J im and Be cky M. arr ived at the Pax ton police station

-6-with Ricky and Aus t in, who wer e then questioned by Pax ton Police Chief Robert Ba ne. Foley testified that she was prese nt during the questioning of the boy s. She stated that Ricky denied the accusations, but that Austin stated he allowed Dillon to “suck his dick.” Foley 3 testified that, afte r Austin made this statement, Mr. M. said they would like an attorney and the interviewwas ter

minated. ¶ 19 Foley also testified that the following morning
, J uly 15, 2006, she conducte d videotaped interviews with Wil lie and Dillon at the Child Advoca cy Center (CAC) in Urba na. J onathon
was not reinterviewed at that time beca use Foley did not fee l he was rea dy to disclose any information. I nstead, J onathon was interviewe d three months later, when he was broug ht to the CAC as part of

a new and unre lated sex abuse investig ation. ¶ 20 On cross-e x amination, Foley admitted that Dillon was ini t i al l y p l aced in foster c are beca use he had been the victim of sexual abuse while living with his m o t h er

. Foley also admitted that betwee n May and J une 2006 Dillon had made two unfounded repor ts of child abuse (not sexual abuse) ag ains t J i m an d Be cky

. Dillon was remove d from the M. foster home in J une 2006 and place d with his gra ndmother. While stay ing w ith his gra ndmother, Dillon beg an t o “a ct out” sexually and was found making inappropriate sexual advanc es toward a y oung cousin. When the g randmother talked to Dillon about his behavior
, he made the ac cusations of sexual abuse at the M. foster home. ¶ 21 Def

ense counsel asked Foley why she did not inte rv i ew J o n at h o n at the CAC until October 2006. Foley explained that when she interviewe d J onathon on J uly 14, 2006, he told her that the only inappropriate or sexual touching he had observe d while stay ing at the foster home was betwee n Dillon and Wil lie. J onathon also said that Dillon had repe atedly tried to touch him, Ricky
, and Austin
, b u t they all ref used Dillon’s advanc es. Despite these

reve lations
, Fo l ey d escribed J onathon as “ver y closed” and stated that, based on her observations of J onathon’s “body lang uag e,” she did not beli ev e J onathon would tell her
any thing more. For this rea son, she did n o t have him broug ht to the CAC the next day

. I n October 2006, howeve r, J onathon was broug ht to the CAC for an investig ation of anothe r, unrelated sexual abuse incident. Foley said she used this opportunity to question J onathon about this case. ¶ 22 Def

ense counsel also q u es t i o n ed Foley about her observations at the time Austin was interviewe d at the Pax ton police station on J uly 14, 2006. The following colloquy took place :

“Q. What did he say

to y our re collection?
A. He talked about, y ou know, one of t he boy s i n t he home; he allowed him to suck his dick. Q. All rig ht. Well, the rea son I am asking it this way is that y ou phrase it in y our

Pro sec uto r L ee asked le adi ng que st ion s thr oughout his exa m ina ti on of Sher ee Fol ey. 3
F urt her
, when asked abo ut Aust in’ s int er view by Chie f Bane
, Fol ey cou ld not re m ember who m Aust in al le gedly abu sed wit hout loo king at her not es. Fol ey was per m it te d to re view her not es, af te r whic h the pro sec uto r st at ed, “Al l ri ght. We wil l nee d to get a cop y of what e ver page you re fe r to,

as wel l as we nee d to get a cop y of Off ic er Yat es’ pol ic e re por t to be m a r ke d a s r e f r e s hed

re col le ct ion .” No obj ect ion was m ade by def ens e c ouns el

.

-7-repor t is [ sic ] y ou say o n p age 37, y ou say he beg an to talk about Dy lan [ sic ] perf orming sucking his dick, and Mr. [M.] is conce rned and the interview stopped; is that true? A. That’s true

. Q. I am curious about the phrase he beg an to talk about Dy lan [ sic ]. I mean, y ou don’t say he said it. You say

he beg an to talk about it.
A. He sta rted to talk about it. Q. Okay . All rig ht. And it sounds li ke he w as cut off

. A. He w as.” ¶ 23 After Foley testified, the court viewed the videotapes of Sheree Foley ’s interviews with 4 Wil lie and Dillon, which took place at the CAC on J uly 15, 2006, as we ll as the videotape of Shere e F oley ’s interviewwith J onathon, which took plac e at the CAC in Octobe r 2006. ¶ 24 The videotape of Dillon’s interview shows that Foley spoke with him for a pproxi mately 27 minutes. Foley first asked Dillon to tell her about the M. foster home and Dill on beg an by stating that Austin and Ricky
, as well as two of J im and Be cky ’s other children, Abby and J ennife r, wer e “mea

n” to him and “ca lled him names.” Dillon then claimed that he witnessed Austin and Ricky “humping ” J ennife r an d Ab b y

. Dillon also said that Austin and Ricky forc ed him to “suck their dicks” and that they car ried knives and threa

tened to kill him if he did not do what they said. Howeve r, Dillon’s main focus was on Austin and Ricky ’s alleg ed behavior with their sisters, which he descr ibed as “ sick.” ¶ 25 I n the course o f t h e i n terview
, Dillon often contra dicted himself. For example, Dillon first stated t hat he never saw Austin or R icky forc ing any one else to “suck their dick,” but later said it happene d to J onathon. Also, Dillon first said that Be cky never hit him, but later said that Be cky hit him “eve ry wher e” a nd that this happened “ all the time.” His excuse for
not telling J im and Bec ky any thing about the s exual abuse by Austin and R icky was “they didn’t car e.” ¶ 26 The videotape shows that, during the i n t er v i ew , Di l l o n b ecame fasc inated by some anatomica lly corr ect dolls that he found in a bag in the interview room. He spent a g ood deal of time undressing the dolls and play ing with the m to descr ibe what he claimed Austin and Ricky wer e doing to their sisters and to him and Jonathon. ¶ 27 The second videotape showed Foley ’s J uly 15, 2006, interview with Wil lie at the CAC, which lasted just over 20 mi n u t es

. I t i s clea r from the vi deotape that Wil lie, who was five
y ear s old, was ver

y restless. He y awne d and stretc hed and w as distrac ted by a juice box he was drinking. He also expressed frustration with the q u es t i o n s and at one point said, “No, I ’m done talking.” He claimed that he saw Austin touch Ricky ’s “w i en er” but said this happene d in their bedroom and that he was sleeping in his own bedroom when he saw this. Since Wil lie’s room was on a differ ent floor from Austin and Ricky ’s room, this would have been impossible. ¶ 28 Wil lie also told a fantastic s tory about Aust in and R icky hitting people “in t heir butt s”

T he vide ota pes have be en made a par t o f t he r eco rd in thi s c ase

. 4

-8-with a shovel. Wil l ie said the police arr ived and took people to the doctor beca use “somebody g ot killed.” Wil lie also claimed the family dog
, Mag g ie, licked Dillon’s “bootie” and said this also happene d to “Tuc ker” (who appar ently is another dog ). Wil lie said he never

saw J ennife r or Abby naked, but that Chris (an older son of J im and Be cky M.) pulled down his pants and showed him his private part. Finally
, Wil lie said that no one touched him, but if any one had tr ied to touch his private pa rts he would have told Bec ky

. ¶ 29 The last v i d eo t ape was the rec ording of Foley ’s interview of J onathon at the CAC on October 27, 2006, which lasted about 20 minutes. When asked about t h e M

. fo ster home, J onathon’s first response was, “I don’t k n o w if y ou know this, but Dillon was sexual at Be cky ’s.” ¶ 30 At first, J onathon said he never saw any thing and did not reme mber any thing. How ever , afte r much prompting from Foley
, he stated that Ricky would make Dillon suc k his private part. J onathon said Ricky and Austin asked him to suck their private parts, but he ref used and

no one made him do it. J onathon also said that he saw nothing of a sexual nature with reg ard
to Wil lie, J ennife r, Abby
, or C hris. Howeve r, he later s t at ed h e saw Austin touch J ennife r over he r clothes, but that Jennifer g ot mad and “sma cked” him. ¶ 31 J onathon said that Dil lon often complained about getting hit, but that Dill on would hit Wil lie. J onathon also said that Dillon did not listen and that he stole things a lot. When asked if there wer e problems at the M. foster home, J onathon said that Ricky had “ang er problems” and “whe n he didn’t take his medication he would hit people.” J onathon also said Austin had
ang er problems and “touching problems.” He said that Austin car ried a p o ck et k n ife and

scar ed him with it. Also, he said that “eve ry day ” Austi n wanted Dillon or J onathon i n his room and tried to put his “thing ” in their butts, but they ref used. ¶ 32 After the videotapes wer e play ed, the State rested. The defen s e t h en ca l l ed 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 J onathon wer e foster children there, Anthony and Abby testified t hat t hey never saw any thin g of a sexual
nature g oing on betwee n the foster children and Austin and Ricky

. After their testimony
, the
matter wa s continued. ¶ 33 Trial resumed m ore t h an t wo months later, on April 3, 2007. On t his date, the defe nse continued with testimony from Ji m and B ecky

M., Austin and Ricky ’s par ents. ¶ 34 Be cky testified first. She said that she had been marrie d to J im for 29 y ear s and that they had eig ht children—thre e biologica l children and five adopted children. The three biologica l children wer e Anthony
, 22 (who had testified ear lier), Nicholas
, 27, and Sarah, 25. The adopted children wer e Chris, 20, Abby
, 18, and Austin, 16 (who are biologica l siblings), as well as Jennifer, 18, a

nd Ricky , 15. Austin was adopted when he was only five we eks old; Ricky was adopted when he was 15 m o n t h s o l d

. Be cky also testified that she has worke d outside the home as a

teac her’ s aide since 1993. ¶ 35 After the preliminary questions, defe nse counsel as k ed Be ck y ab o u t t h e allegations
ag ainst Austin and Ricky :

“[Defe nse counse l] Q. Fa ir to say that y ou disapprove of

sex among c hildren? [Becky ] A. Yes.

-9-Q. Be fair to say that—let me ask y ou this. Thes e are y our adopted kids, Ricky and Austin?
A. Yes. Q. You love them?
A. Yes. Q. You wa

nt the best for the m?
A. Yes. Q. These alleg ations cause y ou conce rn, do they not?
A. Yes. Q. Would y ou participate in a cover up of such activity to try to preve nt the truth from coming out?
A. No. Q. You don’t be lieve these alleg ations are true; is that rig ht?
A. No. Q. B ut y ou’re conce rned?
A. Yes. Q. You ca

n’t be with y our kids ever y minute of the day , can y

ou?
A. No. Q. And thing s can ha

ppen outside y our knowledg e?
A. Yes. Q. I s that rig ht? When you hear d these alleg ations, did you talk to Austin a bout it?
A. Yes. Q. How of

ten did y ou talk to him?
A. I probably did it quite often becaus e I was ge tting mad beca use I was try ing
to use any

thing, y ou know, tell the truth, we can g et help, y ou know, y ou can’ t lie about this. I did it many , many times or tried to trick him s ay ing, y ou know something but they

alway s stuck to this has never ha ppened.” ¶ 36 Be cky was also questioned at len gt h ab o u t s ev er al photogr aphs she had taken whic h depicted the lay out of the sec ond floor of the family home. B ecky

testified that t he door to the bedr oom used by the foster children c ould not be closed be cause it was partially off its hinge s. I n answe r to questions posed by defe nse counsel, Be cky also establi s h ed : that J onathon had come to their foster home in 2004, that there had been no alleg ations of sexual abuse prior to Dillon’s arr ival, that Austin and Ricky wer e not all owed to baby sit for the foster children, and that Austin and Ricky did not ca rr y p o cket knives beca use Ricky had

once use d a knife to vandalize a school bus. ¶ 37 Be cky was then asked if she ever suspected any sexual activity betwee n any of the boy s. Be cky stated that she d i d h ave some suspicion reg arding Dillon and J onathon. Be cky explained that J onathon had complained about Dillon bothering him while he was g ett i ng

-10-dresse d. For this rea son, Be cky had Dillon come downstairs in the morning to dress. Be cky

also testified that Dillon had been difficult to control and neede d specia l supervision. Be cky noted that, soon afte r Dillon arr ived, 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 i n h er van, naked. Also, a short time afte r Dillon came to her home, she found Dillon and J onathon toge ther in J onathon’s bed. Fr om then on, throug hout the time that Dillon was in her home, she require d Dillon to sta y d o wn s tairs with her until he started to g et sleepy

. Be cky said this was

nece ssary beca

use Dillon did not fall aslee p easily and she did not want h i m u p s t airs disturbing the othe r boy s. ¶ 38 Be cky 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 g o into people’ s rooms and steal things. F or this rea son, Dillon was not allowed upstairs duringthe day

. ¶ 39 On cross-e x amination, the prosec utor aske d Be ck y about some “bad acts” by Austin when he was six y ear s old a nd alluded to some rec ent acc usations of improper touching by Austin. The prosec utor also asked Be cky a number of q u estions about Austin’s alleg ed admission at the police station, even though Be cky explained that she had not been prese nt. The following colloquy

betwee n the prosec utor and B ecky took place: “Q. Did Jim tell y ou about Austin starting to make that disclosure ?
A. No. Q. Did y ou become awa re that Austin started disclosing what was g oing on betwee n he and D y lan [ sic ]?
A. When I g ot the police repor t and I filled in a ll the numbers with w hich child, that’s when I

rea d it. Q. When y ou wer e try ing to g et the truth out of Austin, d i d y o u ask him about that statement? A. Yes, I did. Q. Did y ou allow him to complete his story about what wa s g oing on the re?
A. Yea h. Q. Do y ou believe Austin wasn’t telling the truth about allowing Dy lan to suck his penis?
A. No. Austin didn’t have muc h to do with him. He had other f riends. Q. So y ou 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 eng ag ed in doing it with Dy lan [ sic ]? A. And I asked him and he said he ne ver sa id that. Q. Did y ou have any discu s s ions with y our husband about cutting off the questions when Austi n started disclosing about the s exual conduct be tween he and Dy lan [ sic ]? Did y ou ask y our husband why he cut that of

f?

-11-A. B eca use they wer e kind of g etting na sty and say ing you’re a liar.” ¶ 40 Until now, defense counsel d i d n o t o bject to any of t he prosecutor’s questions. At this point, defe nse counsel made an objection based on hear say , which the court overr uled. The questioning the n continued:

“Q. So it’s y our understanding from y our husband that he cut it off beca use it was g etting na sty ? A. They wer e kind of bully ing him. He was only six teen. Q. You used the word, na sty . I s that what y ou and Ji m discussed?
A. Yes—
THE COURT: Next ques t i o n , Mr. L ee. This question has been asked and

answe red. She’ s answer ed y our question.” ¶ 41 The prosec utor also asked Be cky if she reme mbere d telling Sheree Fole y , on J uly 14, 2006, that J onathon had previously been a victim of sexual abuse and that he “allowe d it to 5 happen.” The following

colloquy took place: “Q. Do y ou rec all making a statement to Sheree Foley to the eff ect that J onathon allowed it to happen to him; do y ou rec all making that statement?
A. No. Q. You felt it was signific ant that J onathon had previously been sexually abused; is that corre ct? A. Did I fee l what? Q. You felt it was signific ant that J o nathon had been sexually abused prior to these a lleg ations involving y our home, c orre ct? A. Signific ant to what? Q. You felt it was important to make the DCFS people awa re that J onathon had been pr eviously

abused, c orre ct?
A. I suppose I

did. Q. And y ou also felt the same way with reg ard to Dy lan [ sic ], that i t was important that Dy lan [ sic ] had been sexually abused prior to what was alleg ed to have happene d in y our home, c orre ct?
A. Yea h.” ¶ 42 Be cky was then asked if she knew any thing about Wil lie’s backg round and she indicate d that she did not know much about that. Still, t he prose cutor c ontinued:

“Q. Well y ou cer

tainly had some knowled ge or information with reg ard to J o n at h o n and Dy

lan [ sic ] and their history
, but y ou are claiming y ou didn’t h av e knowledg e or infor

mation with reg ard to Willi e’s history ?
A. J onathon’s came out a y ear afte r we had him. All of a sudden an investigator

T his li ne of que st ion ing was pro m pte d by te st imony tha t had bee n pro vided by Sher ee Fol ey 5 on d ir ect exa m ina ti on, wi tho ut obj ect ion by def ens e c ouns el

.
-12-came to our house and— Q. I t’s a pre tty

straig htforwa

rd question.
THE COURT: Mr. L ee, she ’s answe ring y our question.” ¶ 43 Be cky continued to try to answe r the prosec utor’s questions to the best of her ability , y et the prosec utor persisted on asking Be cky question s ab o u t Wil lie, about which she had no knowledg e. Def

ense counsel never objected to any of the above questions, but when the
prosec utor—on two more occa sions—asked the court to ad monish Be cky to answe r his questions with reg ard to Willie, the court replied: “Tha t’s responsive. Next question.” And later, “I ’m not sure why the question is nece ssary .” Finally
, afte r the second admonishment b y t h e court, defe nse counsel lodge d an objection without stating any g rounds. The court

never ruled on the obje ction but told the prosecutor to move on to a nother que stion. ¶ 44 On redire ct, defe nse counsel asked Be cky about Wil lie’s videotaped testimony and what he said about another older son, Chris. The prosec utor immediately objected to the question. Def ense counsel then tried to explain his rationale for asking the questi o n when the court interjec ted:
“THE COURT: She said she doesn’t believe the alleg ations. I ’m not sure it’s
ap p ro p riate to have her comment on the testimony of the other witnesses. She’s alre ady said she disag ree s with it. [Defense Counsel] : Okay , thanks. Iunderstand the court’s r uling.” ¶ 45 The court repe ated that it understood Be cky ’s position, so defe nse counsel opted to a sk no further questions of the witness. ¶ 46 The last witness was J im M., Austin and Ricky ’s fathe r. He testified that he was 61 y ear s old, a colleg e g raduate, and that he worke d full time as a file librarian in the X-ra y room of the Carle H ospital. ¶ 47 When que stioning J im a bout the alleg ations ag ainst Austin a nd Ricky
, defe nse counse l asked: “Q. You love y our kids as we ll as y our wife ?

A. Yes, I do. Q. And y ou want what’s best? A. Pardon me? Q. You wa

nt what’s best for

y our kids? A. Yes, I do. Q. You don’t a

pprove of child sex between c hildren, do y ou?
A. No. Q. And y ou would want to know if there was oral or anal sex involving Ricky and Austin and either Jonathan or Dy lan [ sic ] or any one; is that rig ht?
A. Yes. Q. And y ou would acc ept the g overnme nt’s help in try ing to deal with issues like that if y ou believed tha

t had happe ned?

-13-A. Yes, I would. Q. You under stand that at this point we are dealing with misdemeanor juvenile delinquency

alleg ations in this case?
A. Yes. Q. But should this ty

pe of behavior persist among boy s afte r they turn the ag e of
sevente en it become s an adult cr iminal problem? A. Yes, I understand that. Q. I n other wor ds, y ou understand the seriousness potential seriousness [ sic ] of such beha vior? A. Yes, I do. Q. And the importanc e of de aling with it if such should have occ urre d?
A. Yes. Q. Fa i r t o say y ou have g rave doubts or y ou are conce rned that this did n o t happen, the se alleg ations are not true, fa ir to say ? ” ¶ 48 J im ag ree d that he did not believe the alleg ations ag ainst his sons. Def ense counsel then asked J im about Austin’s police interview, stating: “And I believe y our rec ollection of how
t h at t o o k p l ac e is a li ttle differ ent t han what the t estimony has been up to this point? ” J i m ag ree d and then de scribed the interview a s follows:
“W e went into the interview room. I was asked—A ustin was asked to sign a fo rm that was basically hi s Mi r a n da rig hts. Then they started to ask hi m about knowing
any i n ap p ro p riate sexual behavior that went on in the house, and he said he didn’t know. They asked him that question sever al times, and he responde d neg at i vely

. I can’ t reme mber the name of the office r. He was sitti ng acr oss from Austin. He asked him if Dillon ever perf

ormed oral sex—or y eah, if Dillon ever perf ormed oral sex on him. He did not respond. Then Captain Ba ne, who was standing in the corne r of the

room y elled at him, did Dillon pe rfor m or al sex on y ou, and he still didn’t respond, and at that point I thought that was ab u s i v e, an d I asked that the interview end. Captain Ba

ne kept talking, so I could see that the interviewwas not ending

. At that point, I asked that we—I stated we neede d a lawy er, and then the interview ended.” ¶ 49 Counsel the n asked J im whether he ever hear d Austin be g in to say that he allowed or al
sex t o be per formed on him by Dillon. J im responded, “ No.” ¶ 50 After J im testified, Austin a nd Ricky
, on advice of counsel, told the court that they had decide d not to testify . The de fense then re sted. ¶ 51 I n rebuttal, the prosec ution rec alled Sheree Foley

. She testified
, o n c e a g ain, that she hea rd Austin sa y he allowed Dillon to “suck his dick” bef ore James ended the interview with the police. On cross-e x amination, howev er , Foley admitted that there was no available tape

rec ording of t he intervie w and she had no clea r i ndepende nt rec ollection of i t since it took place near ly a y ear befor e. She said she based her testimony on her notes, which she prepa red shortly afte r the int ervie w. But she also admitted that her notes on this matter consisted of

a single sentenc e. Fur

ther, Foley admitted that Chief Ba ne had been “ver

y loud and very ag g ressive” when que stioning Austin.

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

made forc eful arguments, stressing the consistencies in the three foster children’ s videotaped
statem ents. The prosec utor also implied that J im and Be cky wer e awa re of Austin and R i cky ’s behavior and sug g ested that it was a “re d flag ” that the pare nts had “segr ega t ed ” Austin and Ricky

in the attic bedr oom. ¶ 53 Def

ense c ounsel then beg an his argument, stating:
“I g uess it’s kind of almost impossibl e to kee p this from sounding like an adver sarial criminal proce eding just like an adult trial, and in the heat of the moment, the prosec utor tries to por tray his c ase in the best light possible, the de fense lawy er does the same. There is cer tainly some simil arities to a trial and that is—but I think there are some differ ence s here

. I think I ’d like to keep our attention—I believe that

we all have the same ultimate g oal in mind, and that is the best interests of these kids. The pare nts have both testified that their values are values that prohibit this ty pe of child sexual behavior

. They are opposed to it in the strong est possible terms. I f this is happening
, they want it known and they want t h eir kids to g et help so it doesn’t happen ag ain. That’s what they have testified to, and they deser ve cre dibilit y on that.” ¶ 54 Def

ense counsel continued to extol the vi rtues of the parents and their thre e biolog ical children, noting that “they ’re not in favor of raising kids the wrong way .” Def ense counsel then continued, stating :

“Sure we all get c aug ht up, but ulti mately they want what is best for Ri cky and Austin. They understand th at this kind of behavior
, if it occur red, is wrong ; it’s
ag ainst the rules; it’s ag ainst the law; it is—it’s unwholesome; it’s unhealthy
, and it’s
g oing to lead to a bad end if it occur red. And they don’t think it happene d. They have questioned the kids over

and over ag ain.” ¶ 55 Def

ense counsel encour ag ed the court, as trier of fac t, to do “the rig ht thing” and “ur g e[d] the Court that not g uilty is the rig ht finding ,” but conce ded that “[i] t’s a tough case .” Def ense counsel also reiter ated much of what was said by the three foster children in their videotapes, pointing out some of the more ludicrous stories and inconsistencies. Howeve r, no argument

was made with reg ard to Austin’s alleg ed statement to the police—the most hotly contested
aspec t of the ca se. ¶ 56 Following closing ar gu m en t , the case was taken under advisement. The court did not
enter its ruling on the matter until Aug ust 28, 2007—near ly five months afte r the close of trial. I n a written adjudication order, the court apologized for the delay
, but exp l ai n ed that it had “strug g led evalua

ting the cre dibilit y ” o f the witnesses. The court then stated its finding s as to eac h of the witnesses: Wil lie’s testimony “lac ked cre dibilit y , ” J o n at hon’s testimony was “only slightly more cre dible,” and Dillon’s testimony was “also suspect.” The
court noted the contra dictory evidenc e reg arding Austin’s alleg ed admission, but conclude d as follows:
“This is the classic case wher e the State has introduced evid en ce s ufficie nt to prove that something probably happene d, but absent an admission, not proof bey ond

a re asonable doubt. This is also, with respe ct to Austin, a case in which the responde nt minor’s

-15-admission has been proved bey ond a rea sonable doubt and, toge ther with the State’s other e vidence , is sufficient to meet the State’ s burden.” ¶ 57 Be cause Ricky had admitted to no wrong doing, the court denied the petition with r espec t to Ricky

. Howeve r, b ec au s e the court found that Austin’s alleg ed admission was proved bey ond a rea sonable doubt, the court held the delinquency petition had been proven bey ond

a re asonable doubt with respec t to Austin. ¶ 58 At a subsequent dispositi on hear ing, the court heard, for t he first time, that Austin had

a low I Q and strug g led at school with lear ning disabiliti es. The court acknow ledg ed Austin’s limit ations, but held that Austin, who was then 18 y ear s old, neede d to take responsibility for his actions. I n acc ord with the prosec ution’s prior ag ree ment, the court sentenc ed Austin to 24 months’ probation, along with 50 hours of public ser vice wor k. ¶ 59 Austin appea led the trial court’s decision and in the appellate court raised the following issues: (1) whether he was deprive d of counsel as g uara nteed by the J uvenile Court Act and

our state and fede ral constitutions; (2) whether he rec eived ineffe ctive assistance of counsel; and (3) whether he was proved g uilty beyond a rea sonable doubt. The appellate court reje cted all of the claims, with one justice dissenting. J ustice Appleton, in d i s s en t , held that the evidenc e did not support a finding that Austin was proved g uilty bey ond a rea sonable doubt. ¶ 60 We g rante d Austin’s petition for leave to appea l in this court. I n addition, we pe rmitted the L oy ola Civitas ChildL aw Center; the Northwe stern University School of L aw Bluhm L eg al Clini c’s Children and Fam i l y J u s t i ce Center; the J uvenile L aw Center; and the National Juvenile Defe nder Cente r to submit a brief a s Amici Curiae in support of Austin.

¶ 61 I I . Analy sis ¶ 62 A. Minor’s Right to Counsel in a Delinquency Trial ¶ 63 Au s t in’s initial claim on appea l is that the leg al repr esenta tio n h e re ce i v ed at h i s delinquency trial amounted to a denial of his rig ht to counsel as g uara nteed by the J uvenile Court Act and by the due proce ss clause s of our state and fede ral constitutions. More

s pecif ically
, Austin contends that, as a minor tried for a criminal offe nse in a delinquency
proce eding
, he had the rig ht to a defense attorney , that is, an attorney who g ives his client his undivided loy alty
, who zealously safe g uards his client’s rig hts and confide nces, and who a c ts in acc ordanc e with his client’s wishes. Austi n as s er ts that he was deprive d of this ty pe of counsel beca

use his attorney , who repr esente d both him and his brother Ricky
, perf ormed less as a de fense attorney and more as a guardia

n ad litem (GAL ). ¶ 64 Austin contends that a GA L , unlike a def ense attorney , owes a duty to the court and to society and may disreg ard a minor client’s wishes if the GA L b el i eves it is in the minor’s best interests. Austin arg ues that his at t o rney , though not actua lly appointed as a GAL
, believed that to be his role and that this notion was reinfor ced by the trial court. Fur ther, Austin contends that his attorney ’s “hy brid repr esenta tion” deprive d him of his statutory and constitutional rig ht to counsel and constitutes a per se conflict of interest requiring reve rsal of his adjudication. ¶ 65 The State asks us to reje ct this claim. The State argues that Austin did not rec eive “ hy brid

-16-repr esentation” bec au s e Au stin’s attorney was never appointed as his GAL

. The State

ac knowledg es that the appellate court held “[a]lt houg h the trial court never ex p re s s l y appointed [Austi n’s attorney ] as g uardia n ad litem
, both the court and [t he attorney ] himself

conce ived his role as that of a g uardia n ad litem —repr esenting the minors’ and society ’s best i n t er es ts—rather than that of a traditional defe nse attorney .” 403 I ll. App. 3d at 683-8 4

. Howeve r, t he S tate conten d s t h i s was error. The S tate also maintains that even if Austin’s attorney did, in fac t, function as both counsel and GAL at Austin’s delinquency trial, it is of no moment beca

use this ty

pe of dua l repre sentation does not constitute a per se conflict of interest. Ac cordingto the State, for hy brid repr esenta tion to be r ever sible err or, there must be evidenc e of an actua l conflict of interest resulting from the hy brid repr esenta tion. Fur

ther, the State argues that nothing in the rec ord indicates that Austin’s attorney ’s perf ormanc e was compromised in any way due to an actua l conflict of interest. The State conclude s that Austin

rec eived the c ounsel to which he w as entitled. ¶ 66 Au s t i n ’s cl ai m require s us to decide two issues: whether “hy brid repr esenta tion ” i s inconsistent with the statutorily and constitutionally g uara nteed rig ht to counsel afforded minors in delinquency proce eding s, and if so, whether
, under the fac ts of this case , Austin’s attorney perf

ormed the dual role of defe nse attorney and GAL when repr esenting Austin at his delinquency trial even though he was not appointed as such. We consider first the nature of the statutorily and constitutionally g uara nteed rig ht to counsel aff orded minors in delinquency

proce eding s. Our re view as to this issue is de novo . See People e x rel. Birke tt

v. Konetski
, 233 I ll. 2d 185, 201 (2009) (leg al issues involving questions of due proce ss and statutory construction ar e subjec t to de novo revie w). ¶ 67 I n d et er m i n i n g the nature of the rig ht to counsel aff orded juveniles in d el i n q u en cy hear ings, we first look to the J uvenile Court Act (Ac t). Section 1-5 of the Act sets forth the “[r]i g hts of parties to proce eding s.” 705 I L CS 405/1-5 (West 2006). I t provides in pertinent part: “No hearing on any petition or motion filed under this Act may be commenced unless the minor who is the sub j ect of the proce eding is repr esente d by counsel. Notwithstanding the prec eding sentenc e, if a guar dian ad litem has been appointed for the minor under Sec tion 2-17 of this Act and the gua

rdian ad litem is a license d attorney at l aw of this State, or i n the eve nt that a cour t appointed spec ial advocate has been appointed as g uardia n ad litem and counsel has been appointed to repr esent the court appointed special advocate, t he court may not require the appointm ent of counsel to repr esent the minor unless the court finds that the minor’s interests are in conflict with wha t the g uardia n ad litem deter

mines to be in the best interest of the minor.” (Empha sis added.) 705 I L CS 405/ 1-5(1) (West 2006). ¶ 68 The second sentenc e in the para g raph a bove wa s added to se ction 1-5(1) by Public Ac t 93-539 and be came eff

ective on Aug ust 18, 2003. I t qualifies a minor’s right to counse l in situations wher e a GAL has been appointed for the minor under sectio n 2-17 of the Act, which relates to abuse and neg lect proce eding s. Section 2-17(1) provides, in pertinent part: “I mmediately upon the filing of a petition alleg ing th at t he minor is a person descr ibed in Sections 2-3 or 2-4 [705 I L CS 4 0 5 /2-3, 2-4] of this Article, the court

-17-shall appoint a g uardia n ad litem for the minor if: (a ) s u ch petition alleg es that the minor is an abused or neg lected child[.] ” 7 0 5 I L CS 405/ 2-17(1) (a) (West 2006). ¶ 69 Section 2-17 further provides in para g raph (1) that the appointed g uardia n ad litem “shall
rep re s en t t he best interests of the minor and shall prese nt rec ommendations to the court consistent with that duty .” 705 I L CS 405/2-17(1) (West 2006). Thus, in an abuse and neg lect
proce eding
, a GAL is, in essenc e, an arm of the court. See In re Mark W

. , 228 I ll 2d 365, 374 (2008) (“A g uardia

n ad litem functions as the ‘ey es and ear s of t h e court’ and not as the

war d’s attorney .”). When a minor is the subject of an abuse or neg lect petition, the appointed GAL is require d to meet with the minor, assess the circ umstances, and deter mine what dispositi on might be in the minor’s best interest. 705 I L CS 405/2-17(1), (8) (West 2006). The GAL also has a duty to repor t back to the court and to provide the court with the GAL ’s opinion of what dispositi on would be in the minor’s best interests. 7 0 5 I L C S 405/2-17(1) (West 2006)

. The GAL ’s duty is to the court and to se eing that the minor’s “best interests”

are repr esente d, reg ardle ss of whether the GAL ’s belief as t o t h e minor’s “best interests” comports with what the minor wants. See In re Mark W

. , 228 I ll. 2d at 374 (“The traditional role of the g uardia

n ad litem is not to advocate for what the war d wants but, instead, to make a recommendation to the court as t o what is in the ward’s be s t interests.”) ; In re B.K.
, 358 I ll. App. 3d 1166 (2005). ¶ 70 By adding the second sentenc e to section 1-5(1)
, the leg islature appar ently believed that when a minor is the subject of an a buse or ne g lect petiti on and is appointed a GAL who i s also an attorney at law, the minor’s interests are sufficie ntly protec ted so that the minor need
not be repr esente d by separ ate counsel. This makes sense, both fiscally and prac tically

. See In re B.K.
, 3 5 8 I l l

. App. 3d 1166, 1174 (2005) (in situations wher e no signific ant conflict exis ts, it is financ ially and functionally prudent to appoint a single attorney to perf orm both roles). ¶ 71 Unlike abuse and neg lect proc eeding s, there is no re quirement that a g uardia n ad litem be appointed in delinquency proce eding s. See 705 I L CS 405/2-1 7 (1 )( a) (West 2006). A
g uardia n ad litem may be appointed in a delinquency proce eding if the min o r has no interested pare nt or l eg al guar dian, i f t he int ere sts of t he parent(s) differ from the minor’s, or i f counsel believes the juvenile is unable to act in his or her own best interests. S ee 705 I L CS 405/ 2-17(3) (West 2006); In re B.K. , 358 I ll. App. 3d at 1170. ¶ 72 I n section 5-170 of the Act, h o we v er, when discussing a minor’s rig ht to counsel in a delinquency

procee ding

the leg islature provide s as follows: “(b) I n a judicial proce eding under this Article [Ar ti c le V, dealing with delinquent minors]
, a mi nor m ay not wa i v e t h e ri ght to the assis tance of counsel in his or her defense .” (Empha sis added.) 705 I L CS 405/ 5-170(b) (West 2006). ¶ 73 Thus, acc ording to the pl ain l ang uag e of the Act, a mi nor i n a d el i nquency proce eding has a nonwaivable rig ht to be repr esente d by a defen s e attorney

. There is no statutory exception which would permit repr esenta tion by a GAL —even one who is also an attorney at law. ¶ 74 Minors in del i n q u en cy p ro ce ed i n gs also have a constitutional rig ht to counsel. The

-18-unconditional rig ht to counsel and, in particula r, the effective assistance of counsel, in delinquency proce eding s was first rec og nized by the United States Supreme Court, in In re Gault , 387 U.S. 1 (1967). ¶ 75 I n Gault
, the Court considere d “the prec ise impact of the due proce ss require ment [upon]
proce eding s” “by

which a determination i s made as to whether a juvenile is a ‘delinquent’

as a result of alleg ed misconduct on his part, with the conseque nce that he may be committed
to a state instit ution.” Gault
, 387 U.S. at 13-14. After discussing the history and theore tical underpinning s of the juvenile c ourt sy stem, the Court conclude d:

“F ailure to observe the fundame ntal require ments of due proce ss has resulted in instances, which might have been avoided, of u n fairness to individuals and inadequ ate or inacc urate finding s of fac t and unfortunate presc riptions of reme dy

. Due proce ss of law is the primary and indispensabl e foundation of individual fre edom. I t is the basic and essential term in the social compac t which define s the rig hts of the individual and delimits the power s which the state may exercise. As Mr. J ustic e Fr ankfur

ter has said: ‘The history of Americ an fre edom is, in no small

measure , the history of proce dure.’ But in addition, the proce dural rules which have been fashioned from the g ener ality of due proce ss are our b est instruments for the distil lation and eva luation of essential fa cts from the c onflicting welter of data that life and our adver sary methods prese nt. I t is these instruments of due proce ss which enhanc e the possibili ty that truth will emer g e from t h e co nfrontation of opposing versions and conflicting data. ‘Proce d u re i s t o law what “scie ntific method” is to scienc e.’ ” Gault , 387 U.S. at 19-21. As to a minor’s rig ht to counsel, the Gault Court held:
“A proce eding wher e the issue is whether the child will be found to be ‘delinquent’ and subjected to the loss of his l i b erty for y ear s is compar able in seriousness to a felony prose cu t ion. The juvenile needs the assistance of counsel to cope with problems of law, to make skilled inquiry into the fac ts, to insist upon regularity of the
proce eding s, and to asce rtain whether he has a defe nse and to prepa re and submit it. The child ‘req u i re s t he g uiding hand of counsel at ever y step in the proce eding s ag ainst him.’ ” Gault , 387 U.S. at 36. ¶ 76 I t is clea

r to us that a juvenile’s ri gh t t o co u nsel in a delinquency proce eding is firmly anchor ed in both due proce ss an d our statutory scheme

. I n fac t, with the exception of the rig ht to a jury trial, the fourteenth amendme nt to the United States Consti tution ex tends to delinquent minors all of the basic rig hts enjoy ed by criminal defe ndants. See Gault
, 387 U.S.
at 30-31, 33, 41, 51, 55 (self- incrimination, notice, confr ontation, cross-e x aminat i o n , and counsel); In re W

inship
, 397 U.S. 358, 368 (1970) (re asonable doubt); Breed v. Jone s , 421 U.S. 519, 529, 531 (1975) (double jeopar dy ). Moreover, since Gaul t , t h e need for zealous advocacy t o v i n dicate the constitutional rig hts of minors in delinquency proce eding s has becom e even g reater. Wit h the J uvenile J ustice Reform Provisions of 1998, along with a number of other amendments to the J uvenile Court Act since 1999, our leg islature has transfor med the Act, making juvenile delinquency proce eding s more akin to criminal
prosec utions. See People v. Taylor
, 221 I ll. 2d 157, 165 (2006) (ame ndatory chang es which

-19-b ec ame eff ective in 1999, “ra dically altere d” the J uvenile Court Act and “lar g ely re wr o t e article V of the Act to provide more acc ountability for the criminal acts o f j u veniles and, from all appea

ranc es, to make the juvenile deli n q u en cy adjudicator y proce ss look more criminal in nature ”). Although rehab i l itation is still an important g oal of delinquency
proce eding s, they have become more punitive and less confide ntial. See In re A.G.
, 195 I ll. 2d 313, 317 (2001) (the 1998 revisions to the Act “re prese nt[ ] a fundame ntal shift from the singula r g oal of reha

bilitation to include the overr iding conce rns of protec ting the public and holding juvenile o ff

en d er s acc ountable for violations of the law”)

. I n many case s, minors who ar e found de linquent are subject to serious, life- altering conseque nces. ¶ 77 Given the above, the ty pe o f “c o u n sel” which due proce ss and our J uvenile Court Act require to be af

forde d juveniles in delinquency proce eding s is that of defense counsel , that is, counsel which can only be provided by an attorney whose singula r loy alty is to the defe nse of the juvenile. 6 ¶ 78 Our inquiry does not e nd here

. We must still consider whether it is constitutionally and

s t at u t o ri ly permissible for a single attorney to function as both defe nse counsel and GAL when repr esenting a minor in a delinquency proce eding

. Austin contends that such dual
repr esentation constitutes a per s e co nflict of interest. The State, howeve r, maintains that there must be evidenc e of an actua l confl i ct o f i ntere st resulting from the hy brid
repr esentation. W e ag ree with Austin. ¶ 79 I t has long been rec og nized that the rig ht to eff ective assistance of counsel includes the rig ht to c onflict-fr ee r epre sentation. See People v . Hernande z , 231 I ll. 2d 134, 142 (2008); People v. Morales
, 209 I ll. 2d 340 (2004). I n People v. W ashington
, 101 I ll. 2d 104, 109-10 (1984), we held:

“An acc used’s six th amendment rig ht to eff ect i v e assistance of counsel is a fundame ntal rig ht. ( 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 Aust in and the amic i have ci te d a number of le gal publ ic at ion s and la w re view ar ti cl es 6 whic h set for th re comm end at ion s, s t a n d a r d s , and guidel ine s re gardi ng the re pre sen ta ti on to be af for ded j uvenil es in del inq uen cy pro cee din gs. T hes e aut ho ri ti es m ai nt ain tha t pro per adminis tr at ion of the j uvenil e j ust ic e syste m re qui re s a j uvenil e in del inq uen cy p roc eed ings t o ha ve the ef fe ct ive

ass is ta nce of def

ens e cou nse l, not “be st int er est s” re pre sen ta ti on. I n si tua ti ons wher e a guardi an ad li te m m ust be app oin te d, it is re comm end ed tha t the rol e be ful fi ll ed by a sep ar at e per son who m ay, but nee d no t b e, an at tor ney. See Nat ion al Counc il of J uvenil e and Family Co urt J udges, J uvenil e D e l i n q u enc y Gui del ine s, Impr ovi ng Cour t Prac ti ce in Juv eni le Del inq uen cy Case s 30- 31 (20 05)
, avail abl e at htt p:/ /www.nc j fc j .or g; Nat ion al Advisor y Com m it te e for J uvenil e J ust ic e and Del inq uen cy Pre venti on, Sta ndar ds for the Admi nis tr ati on of Juv eni le Jus ti ce , Com m ent ar y to § 3.13 4, at 278-79 (19 80)
, avail abl e at htt p:/ /www.e ri c.e d.gov ; Nat ion al J uvenil e Def end er Cent er , Rol e of Juv eni le Def

ens e Couns el in Del inq uen cy Cour t 7 (20 09)
, avail abl e at htt p:/ /www.nj dc.i nfo ; Rec ommend

ati ons of the UNLV Conf

ere nce on Repr ese nti ng Chil dre n in Fami li es: Chil d Advo cac y and Jus ti ce Ten Y

ear s A f t e r F o r dham
, 6 Nev. L.J

. 592, 609 (20 06) ; Rec ommend ati ons of the Conf ere nce on Eth ic al Is sue s in the Lega l Repr ese nta ti on of Chil dre n in Il li noi s , 29 Loy. U. Chi. L.J

. 377, 382 (1 998)

.
-20-457.) The assistance of counsel m ea n s assistance which entitles an acc used to the undivided loy alty of his counsel and which prohibits the attorney from repr esenting conflicting interests or undertaking the dis char g e of inconsistent obligations. ( People

v. Franklin (1979), 75 I ll. 2d 173; People v. Kester (1977), 66 I ll. 2d 162; People v. Stoval (1968), 40 I ll. 2d 109.) I n order to assu re and protec t these rig hts, the defe ndant nee d not show prejudice in order to justify a re versa l of his conviction if the attorney repr esenting him has an actua l o r possible conflict of profe ssional interests. Glasser v. United States (1942), 315 U.S. 60, 86 L

. Ed. 680, 62 S. Ct. 457; Peopl e v. R o b i n son (1979), 79 I ll. 2d 147; People v. Fife (1979), 76 I ll. 2d 418; People v . Coslet

(1977), 67 I ll. 2d 127; People v . Stoval (1968), 40 I ll. 2d 109.” ¶ 80 More r ece ntly , in People v . Taylor
, 237 I ll. 2d 356 (2010), we disc ussed the diffe renc e betwee n per se conflicts and actua l conflicts of interest. Citi ng People v. Hernande z , 231 I ll. 2d 134, 142 (2008), a

nd People v

. Spreitzer , 123 I ll. 2d 1, 13-14 (1988), we explained that

a per se conflict of interest will be found to exis t wher e cer tain fac ts ab o u t a d efe nse attorney ’s status eng ender
, by themselves, a disabling conflict. Taylor
, 237 I ll. 2d at 374. A
per se conflict has been found in s ituations wher e: (1) defe nse counsel had a prior or contempora

neous association with the victim, the prosec ution, or an entity as s isting the
prosec ution; (2) defe nse counsel contempora neously repr esente d a prosec ution witness; and (3) defe n s e co u n sel was a former prosec utor who had been persona lly involved in the
prosec ution of defe ndant. Taylor
, 237 I ll. 2d at 374; People v. Morales
, 209 I ll. 2d 340, 345- 46 (2004). ¶ 81 As we explained in W ashingt o n , t h e re as o n fo r h av i n g a per se rule prohibiting
repr esentation by

an attorney with possible conflicting interests is that cer tain associations
may have “subliminal eff ects” on counsel’s p er formance which are difficult to detec t and demonstrate. W

ashington
, 101 I ll. 2d at 110. See also Spreitzer
, 123 I ll. 2d at 16; People v. Dal y , 3 4 1 I ll. App. 3d 372, 376 (2003) (the per se conflict rule is desig ned to avoid unfairne ss to the defe ndant, who may not be abl e t o d et er mine whether his repr esentation

was aff ecte d by the conf lict). Acc ording ly , if a per seconflict is established, the defe ndant need not show that the conflict aff ecte d the attorney ’s actua l perf ormanc e in order to secur e

a reversa l of hi s conviction. Taylor
, 237 I ll. 2d at 374-75; People v. Stoval
, 40 I l l

. 2 d 109, 113 (1968). I f a per se conflict is not established, reve rsal will require a showing of an actua l conflict. ¶ 82 An actua l conflict g ener ally
, if not exclusively
, involves joint or multipl e re prese ntation. Taylor
, 237 I ll. 2d at 375; Spreitzer
, 123 I ll. 2d at 17. I n actua l conflict situations the acc used need not prove prejudice in that the conflict contributed to the conviction, but it is nece ssary to establish that an actual c o n fl i ct of i ntere st adver sely aff ecte d the l awy er’ s perf

ormanc e. Taylor
, 237 I ll. 2d at 375-76 (citing Cuyler v. Sullivan
, 446 U.S. 335, 350 (1980))

. I n other words, the defe ndant must point to some specific defe ct in his counsel’s strateg y , tactics, or decisionmaking attributable to the a lleg ed conf lict of interest. Taylor , 237 I ll. 2d at 376. ¶ 83 When deciding whether a per se conflict of interest exis ts, the revie wing co u rt s h o uld make a “re alistic appra isal of defe nse counsel’s profe ssional rela tionship to someone other than the defe ndant u

n d e r th e c ir cumstance s of eac h case .” (I nterna l quotation marks omitted.) People v. Daly
, 341 I ll. App. 3d at 376 (quoting People v. Hernande z , 246 I ll. App. 3d 243,

-21-249 (1993))

. Having done so here
, we find there is an inhere nt conflict betwee n the

profe ssional responsibiliti es of a defe nse attorney and a GAL

. See In re B.K.
, 358 I ll. App. 3d 1166, 1170-71 (2005) (“We are mindful there are inhere nt conflicts t h at exis t when an attorney acts a s both a juvenile’s a ttorney as we ll as his gua

rdian ad litem .”). ¶ 84 I n a delinquency proce eding
, when counsel attempts to perf orm the role of GAL as well

as defe nse attorney , the risk that counsel will r ender ineffe ctive assistance or that an actua l conflict of interest will a

rise is substantial. See State v. Joanna V. , 2004-NMSC-024, ¶ 13, 136 N.M. 40, 94 P.3d 783 (“G iven the natura l tension betwee n the roles of GAL and defe nse counsel, there is a heig htened potential that an attorney may become comp ro m ised by attempting to d o b o th

. ”). Moreove r, the sublimi nal eff ect on counsel who attempts to perf orm both roles may be subtle an d not easily detec ted or demonstrated—pa rticularly by the juvenile being repr esente d. ¶ 85 As noted ear lier, t h er e i s n o re q u i re m en t that a g uardia n ad litem be appointed in delinquency case s. There fore
, when a g uardia n ad litem is appointed in a delinquency case , it is g ener ally beca

use there is no interested pare nt or leg al g uardia n to repr esent the child’s best interests. I n these situations, the GAL must act in the role of a conce rned pare nt, which is often in opposition to the position of defe nse counsel. See In re Lis a G.
, 504 A.2d 1, 5 (N

. H. 1986). Further, a GAL —unlike a defense attorney —owes a duty to the court an d t o society

. A g uardia

n ad li t em need not zealously pursue acquittal if he does not believe acquittal would be in the be st interests of the minor or soc iety

. ¶ 86 When counsel attempts to fulfill the role of GAL as well as defe nse counsel, the risk that the min o r’ s constitutional and statutory rig ht to counsel will be diluted, if not denied altog ether , is too gre at. See In re Lisa G.
, 504 A.2d at 5; In re Dobson , 212 A.2d 620, 622 (Vt. 1965) (“[A] lawy er attempting to f unction as both g

uardia n ad litem a

nd leg al counsel is cast in the quandry [ sic ] of acting as both attorney and client, to the detrim ent of both
capa cities and the possible jeopar dizi ng of the infant’s interests.”)

. Even tho u g h a delinquency trial is not as advers ar i al as a criminal trial, the State still has the burden of proving that the juvenile committed the alleg ed offe nse bey ond a rea sonable doubt. O nly a dedicated and zealous advoca te can hold the S tate to that burden. W e concl u d e, there fore
, that the interests of justice are best serve d by finding a per se conflict when minor’s counsel in a delinquency proce eding simult aneously functions as both defe nse counsel and g uardia n ad litem

. ¶ 87 Having rea ched this conclusion
, we n o w co n s i d er wh et h er the fac ts of this case demonstrate that Austin’s defe nse counsel, though not actua lly appointed as GAL
, provided “hy brid repr esentation,” that is, that he functioned as both G AL and defe nse counsel in the

case at bar . To make this deter mination, we turn to the re cord. ¶ 88 I nit i al l y , we note that Austin’s pare nts hired the attorney who repr esente d Austin and Ricky in the delinquency proce eding s. There is no dispute, there fore
, that the boy s’ attorney

was hired to perf

orm the role of defe nse counsel and, as such, he cross-e x amined prosec ution witnesses, prese nted witnesses in defe nse, made objections, and provided closing argument. The question befor e us, however, is not whethe r Austin’s attorne y perf ormed the duties of defe nse counsel. Clearly
, he did. The question is whether Austin’s attorney misperce ived the

-22-role of defe nse counsel in juvenile delinquency proce eding s to be some ty pe of hy brid “best interests” repr esentat i o n and, based on that misperce ption, provided something other than the zealous repr esentation to which Austin was entitled. Thus, in examining the rec ord, our focus is on evidenc e that Austin’s defe nse attorney functioned as GAL or “best i n t erests” counsel. ¶ 89 W e b egin by noting that, prior to trial, at a hear ing on September 25, 2006, the co u rt explained the respondents’ right to counsel to thei r pare nts, J im and Bec ky M., stating the following : “At this point, [respondents’ attorney] is enter ing an appea ranc e for y our sons only

. So, he repr esents them and does not repr esent y ou. He represe nts what’s in the best in t er es t o f t h ese Minors, which may or may not be w hat the Minors or the par ents think is in their best int erest .” (Empha sis added.) ¶ 90 I n descr ibing the rol e o f Au s t i n ’s at t orney , the court g ave the classic descr iption of a
g uardia n ad litem

. Thus, althoug h the trial court did not appoint Austin’s attorney as a GAL
, the cour t, itself, perc eived that to be his role. Further
, Austin and his pare nts were advised by the court, in no uncer tain terms, that t h e t y

p e of counsel who would be repr esenting Austin at trial was not counse l in his defense but, rather, the “ best interests” a dvocac y of a GAL

. The court’s comments are also signific ant beca use Austin’s attorney never attempted
to corr ect the court’s descr i p t i o n o f h i s repr esenta tional role. The rea son, it seems, is that Austin’s attorney , too, saw his role more as that of a g uardia n ad litem than defe nse counsel, as his comments at the be g inning of trial demonstrate

. ¶ 91 I n the backgro u n d s ec t i o n ab o v e, we noted that befor e the delinquency trial beg an Austin’s attorney explained his rationale for repr esenting bo t h Aus tin and Ricky and for allowing the admission of the videotaped s t at em en t s. I n the course of those explanations, Austin’s attorney made it clea r that he was alig ning himself with Austin’s pare nts, the
p ro s ec u t ion, and the trial court in an attempt to do what he believed would be in the “be s t interests” of his clients. For example, Au s t i n ’s at torney admitted that he was not g iving Austin and Ricky the same consideration he would g ive adult criminal defe ndants. He said:
“I am repr es en t ing two clients here
, and ordinarily
, if this wer e an adult case —I
cannot imag ine—it is extremely rar e I would contest a hear ing attempting to repr esent two individual clients that deser ve the benef

it of individual repr esenta tion,
separ ate consideration, and the alleg ations are kind of—they are pretty widespre ad.” ¶ 92 His expl anation for repr esentingboth Austin and Ricky was: “I don’t view such a proce edingas adve rsar ial as i t might be if it wer e an adult

case

. I view this as a truth-seek ing process on all parts

. I explained this to the
pare nts, I think they are comf o rt ab l e with me being a lawy er for both kids. They
ag ree it is in the best interest and beneficial to eve rybody that I continue to repr esent both.” (Emphasis adde d.) ¶ 93 Also, when explaining why he was allowing witness testimony to be admitted by way of videotape, he stated:

“I am comforta

ble with this in this case because we want to know t he truth is ultimately the view of the parents

. I f something along the nature of these alleg ations,

-23-which are acts of sexual penetr ation involving children here
, but my clients are 15 and 16 y ear s old and the victims are 10 and 12 y ear s old at the time. And I think our, at that time, attitude is we have g rave doubts these things oc curr ed. The boys deny they occurre d, but I think the parents an d I a g r ee

— 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 governm ent to help these boys if such things happened

. Yo u k now, so. We are on the same pag e, and we don’t want to cause trauma to any body

. But we are , we are not— we are seek ing the truth this here [sic] the same as the Court and the same as the prosec utor is our posi tion

. And Iam comfor table with proce eding b y wa y o f the video tape as opposed to requiring these y oung children to c ome into Court at this hearing .” (Empha ses adde d.) ¶ 94 Although these statements wer e made at the beg inning of the t ri al
, t h ey are important beca use they demons t ra t e t h e defe nse attorney ’s mindset and set the tone for his
repr esentation. ¶ 95 Def

ense counsel’s mindset is evident when he examine d t h e b o y s ’ p ar en t s

. When questioning B ecky , the boy s’ mother, de fense counsel a sked her :

“Q. Be fair to sa

y that—let me ask y ou this. These are y our adopted kids, Ricky and Austin?
A. Yes. Q. You love them?
A. Yes. Q. You wa

nt the best for the m?
A. Yes. Q. These alleg ations cause y ou conce rn, do they not?
A. Yes. Q. Would y ou participate in a cover up of such activity to try to preve nt the truth from coming out?
A. No. Q. You don’t be lieve these alleg ations are true; is that rig ht?
A. No. Q. B ut y ou’re conce rned?
A. Yes. Q. You ca

n’t be with y our kids ever y minute of the day , can y

ou?
A. No. Q. And thing s can ha

ppen outside y our knowledg e?
A. Yes.” (Emphasis adde d.) ¶ 96 Simi larly
, when examining the boy s’ fathe r, J im, counsel posed the following questions:

“Q. You love y our kids as we ll as y our wife ? A. Yes, I do.

-24-Q. And y ou want what’s best? A. Pardon me? Q. You wa

nt what’s best for

y our kids? A. Yes, I do. Q. You don’t a

pprove of child sex between c hildren, do y ou?
A. No. Q. And y ou would want to know if there was oral or anal sex involving Ricky and Austin and either Jonathan or Dy lan [ sic ] or any one; is that rig ht?
A. Yes. Q. And y ou would acc ept the g overnme nt’s help in try ing to deal with issues like that if y ou believed tha

t had happe ned? A. Yes, I would.” ¶ 97 Finally , during closing arg ument, defe nse counse l stated: “The re is cer

tainly some s i m i l ar i t i es t o a trial and that is—but I think there are

some differ ence s here

. I think I ’d like to keep our attention—I believe t h at we all have the same ultimate g oal in mind, and that is the best interests of these kids.
The pare nts have both testified that their values are values that prohibit this ty pe of child sexual behavior

. They are opposed to it in the strong est possible terms. I f this is happening
, they want it known and they want their kids to g et help so it doesn’t happen ag ain. That’s what they have testified to, and they deser ve cre dibilit y on that.” ¶ 98 C l ea rl y , Au s t i n’s attorney made it known on more than one o cc as i o n d u ri n g t h e delinquency trial that he share d with the court, the State, and the pare nts, the common g oal of g etting to “the truth.” Austin’s attorney also sug g ested that he believed an adjudi cation and the attendant conseque nces would be in Austin’s “best interests” if, in fac t, he committed the char g ed offe n s es

. Although it is not unusual for a defe nse attorney to state that the defe nse is seeking “the truth,” the implication is ty pically that “the truth” to be shown is that the defe ndant is innocent of the char g es. Her e, howeve r, defe nse counsel’s ref ere nce to “the truth,” in context, indicates that “the truth” is that the alleg ed sexual abuse happene d, and “ if such acts happened, then it needs to stop. A n intervention is not inappropriate by way of
governm ent to help these boy s if such things happened .” (Empha sis added.) ¶ 99 We also find it telling that Austin’s attorney never attempted to suppress the one piec e of evide nce w hich, ultimately , was the basis for the trial court’ s finding of g uilt—Austi n’s alleg ed statement to the police. Des p ite the fac t that Austin’s attorney elicited testimony from Sheree Foley which indicated that Austin was ag g ressively questioned by the Pax ton police chief
, he never attempted to argue that the alleg ed statement by Austin was involuntary

. Nor did Austin’s attorney attempt to show that Austin had learning disabiliti es and diminis hed mental capa

biliti es—informa tion that came out at sentenc ing—w hich might have made him

more vulnerab l e to the vigor ous questioning at the police station. Fur ther, in closing
argument, Austin’s attorney never argued that, due to the contra dictory testimony
, the court should discount, or disreg ard altog ether
, Austin’s alleg ed statement at the police station. I n fac t, defe nse counse l made no ar g ument at all re g arding this one contested point.

-25-¶ 100 We rec og nize that juveniles are no t en t i t l ed t o a j u ry t ri al and, thus, delinquency

proce eding s are not the exact equivalent of an adult trial. We a lso a g ree that, as envisioned by the J uvenile Court Act, juvenile proce eding s are intended to be less ad v er s arial than criminal trials. Neve rtheless, when a minor is char g ed with a criminal offe nse—par ticularly

one wh i ch m ay subject him or her to a lifetime of collater al conseque nces—the minor is entitled to an attorney wh o i s dedicated to providing the minor with a zealous defe nse, an attorney who will hold the prosecution to its burden of proof. The time for “be st interests” considerations is at the disposi tion phase. ¶ 101 Austin contends that, in this case , the comments and conduct of his attorney throug hout the delinquency proce eding s are strong evidenc e that his attorney ’s conce rn was to do what he believed was in the best interests of his c lients and of society and, thus, his attorney was not acting as defe nse counsel. We ag ree

. Ba sed on the fac ts of this ca s e, we hold, as the appellate court did, that “[a]lt houg h the trial court never expressly appointed [Austi n’s attorney ] as g uardia

n ad litem
, both the court and [Austi n’s attorney] himself conce ived his role as that of a g uardia n ad l i t em

— re p re senting the minors’ and society ’s best interests—rather than that of a traditional defe nse attorney .” 403 I ll. App. 3d at 683-84. For this rea son, we find that Au s tin’s counsel labore d under a per se conflict of interest. Acc ording ly , we r ever se Austin’s conviction and r emand f or a ne w trial.

¶ 102 B. Ineffec tive Assistance of Counsel ¶ 103 As set forth above, Austin also raises sever al claims of ineffe ctive assistance of counsel in his appeal. He contends: (1) his attorney was inef fec tive beca

use he labore d under a per

se conflict of interest based on his contempora neous repr esentation of Ricky
, an alleg ed vict i m i n t h i s case ; (2) his attorney was ineffe ctive beca use he labore d under an actua l conflict of interest based on his rela tionship with Austin’s pare nts; (3) his attorney provided ineffe ctive assistance beca use he n e v e r c h a ll e n g e d the admissibili ty of the hear say statements of three witnesses (the videotapes) ; (4) his attorney provided ineffe ctive assistance beca use he waived Austi n ’s constitutional rig ht to confr ont the witnesses ag ainst him; and (5) his attorney provided ineffe ctive assistance beca use he never filed a motion to suppress Austin’s statement to the police. ¶ 104 We ha

ve alre ady discussed much of counsel’s complained- of conduct, finding that it is evi dence that Austin’s attorney was acting more as a g uardia n ad litem than as a defe nse attorney

. There fore
, we need not consider whether the conduc t s u p ports a fre e-standing claim of ineff ective a ssistance of c ounsel.

¶ 105 C. Sufficiency of the E videnc e ¶ 106 Austin’s only rema ining claim is that the evidenc e p re s en t ed at h i s d el i n q u ency proce eding was not sufficie nt to prove him g uilty bey ond a rea sonable doubt. A lthough we have alre ady reve rsed Austin’s adjudication, we must deter mine whether doub l e j eo p ardy would preve nt h is retria l. See People v. Lopez
, 229 I ll. 2d 322, 367 (2008) (re trial raises double jeopar dy

conce rns and r equire s us to consider the suff iciency of the e vidence ). ¶ 107 I n delinquency proce eding s, as in criminal case s, when ev al u at i n g a challeng e to the

-26-sufficie ncy of evidenc e, the rele vant question is “whe ther, [after] viewing the evidenc e in the

light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.” In re Jonath on C.B.
, 2011 I L 107750, ¶ 47; see also People v. Colli ns , 106 I ll. 2d 237, 261 (1985) (quoting Ja ck s o n v. Virginia
, 443 U.S. 307, 319 (1979))

. Gene rally
, the t rier of fac t has had the opportunity to hear and see the witnes s es and, for that rea son, is in the best position to judge cre dibilit y

. People v. W

heele r , 226 I ll. 2d 92, 114 (2007). Thus, it is not the function of a revie wing court to retry the defe ndant. People v. Sutherland
, 223 I ll. 2d 187, 242 (2006). Rather, a revie wing
court “must allow all rea sonable infere nces from the rec ord in favor of the p ro s ec u t ion” ( People v. Cunnin g h am , 212 I ll. 2d 274, 280 (2004)) and reve rse a conviction only if the evidenc e is so improbable, unsatisfac tory , or inconclusive that it cre ates a rea sonable doubt of def endant’ s g uilt (People v . Colli ns , 214 I ll. 2d 206, 217 (2005)). ¶ 108 I n t h e case at bar, the t rial court admittedly strug g led when assessing the credibility of the three child witnesses whose testimony was rec eived by way of videotape. Ultimately
, the
court ruled th at Wil lie’s testimony “lac ked cre dibilit y ,” J onathon’s testimony was “only slightly more cre dible,” and Dillon’s te stimony was “suspec t.” For these rea sons, the court found this evidenc e, standing alone, wa s n ot sufficie nt to support a finding of g uilt and acquitted Ri ck y

. Austin, howeve r, was alleg ed to have made an admission to the police. Whether the statement was actua lly made wa s a hotly contested issue at trial. Nonethele ss, the court resolved that issue, ruling that the State had proved bey ond a rea sonable doubt that the admission was made

. ¶ 109 Af

fo rd i n g proper defe renc e to the finding s of the trial court, we cannot say th at n o rational trier of fac t co u l d h av e found the essential elements of the offe nse bey ond a

rea son ab l e doubt. Acc ording ly
, we hold that the evidenc e was sufficie nt to prove Austin
g uilty

.

¶ 110 I I I . Conclusion ¶ 111 We find that the evidenc e prese nted by the State in Austin’s delinquency proce eding was sufficie nt to support Austin’s ad j u d i ca tion. Howeve r, we reve rse Austin’s adjudication of d el i nquency based on our finding that, under the specific fac ts of this case , the leg al
repr esentation Austin rec eived at his delinquency trial was not the ty pe of counsel g uara

nteed by due proce ss and our J uvenile Court Act. Austin’s attorney operated under a per se conflict

o f i n t er est due to the fac t that he functioned more as a g uardia n ad litem than as defe n s e counsel. ¶ 112 The judgme nts of the circ uit and appellate courts are reve rsed and the cause is remande d to the circ uit court for f

urther pr ocee dings.

¶ 113 J udg ments reve rsed. ¶ 114 Cause re manded.

-27-¶ 115 J USTI CE FREEMAN, c oncurr ing in pa rt and dissenting in part: ¶ 116 I ag ree that Austin’s delinquency adjudicati o n must be reve rsed, but for rea sons other than those advanc ed in today ’s opinion. I find Austin’s argument that the State failed to meet its burden of proof

to be per suasive. As such, r emand f or a ne w trial is inappropriate. ¶ 117 Under I llinois law, proof of an offe nse require s proof of two distinct propositions or fa cts bey ond a rea sonable doubt: (1) that a crime occur red, i.e.
, the corpus delicti ; and (2) that the crime was committed by the person char g ed. People v. Sargent
, 239 I ll. 2d 166, 183 (2010). I t is well established that proof of the corpus delicti may not rest exclusively on a defe ndant’s extrajudicial confe ssion, admission, or other statement. Id .; People v. Furby
, 138 I ll. 2d 434, 446 (1990); People v. Lambert
, 104 I ll. 2d 375, 378 (1984). Where a defe ndant’s confe ssion is part of the proof of the corpu s delicti
, the prosec ution must also adduce corr oborating evidenc e independe nt of the defe ndant ’s o wn statement. Sargent
, 239 I ll. 2d at 183. I f a confe ssion is not corr oborate d in this way , a conviction based on the conf ession cannot be sustained. Id

. ¶ 118 “[ I ]f the independe nt evidenc e tends to prove that an offe nse occ u rr ed
, t h en s u ch evidenc e, if corr oborative of the fac ts contained in the confe ssion, may be considere d along with the confe ssion in establishing the corp u s d eli cti .” (Emphasis in orig inal.) People v. W illingham , 89 I ll. 2d 352, 361 (1982). “ I n such eve nt, the independe nt evidence need not establish bey ond a re asonable doubt that an offe nse did occ ur.” Id

. ¶ 119 There is no require ment that the independe nt evidenc e and the details of the conf ession

co rr es pond in ever

y particula

r. Furby
, 138 I ll. 2d at 451. “What is nece ssary are fac ts o r circ umstances ‘ “indepe ndent of the confe ssion, and consistent there with, tending to confirm and st reng then t he confession.” ’ ” Id

. at 452 (quoting People v. Lueder , 3 I ll. 2d 487, 489 (1954), quoting Bergen v . People , 17 I ll. 426, 429 (1856)). ¶ 120 Un d er the corpus delicti corr oboration require ment, the State’s burden, as g ene ra l l y framed by this court, is that the independe nt evidenc e must “tend” to show or establish that

a crime did occur

. T h e term “cr edible” is essentially absent from these formulations. Howeve r, a cre dibilit y component is never theless implicit. See People v. Hubbard
, 38 I ll. 2d 104, 110-11 (1967) (re

jecting State’s ar gu m ent that defe ndant’s rape confe ssion was sufficie ntly corr oborate d, wher e “the evidenc e supporting the confe ssion is so weak as to defy belief” ); Furby
, 138 I ll. 2d at 452 (re quiring fac ts or circ umstances “indepe ndent of the confe ssion, and consistent there with, tending to confirm and st re n gt h en the confe ssion” (interna l quotation mar

ks omitted)). The alternative would be untenable. I t makes no sense to allow incre dible evidenc e to suffice to corr oborate a defe ndant’s admission. Evidence that is not credible c annot cor roborate any

thing; the ter

ms are se lf-contr adictory

. 7

As ind ic at ed abo ve, a cr e d ibi li ty component is implic it in I ll ino is ’ cor pus del ic ti 7

cor rob ora ti on re qui re m ent

. I not e, in add it ion
, tha t oth er j uri sdi ct ion s have exp re ssl y inc lud ed suc h

a component

. S e e S tat e v. Angl in
, 751 A.2d 1007
, 1011 (M e. 2000 ) (s ta ti ng the re m ust be “su ch

cr edi ble eviden ce as wil l c re at e a sub st ant ia l b el ie f t hat th e cr ime cha rged has bee n comm it te d by

some per son ”) ; Sta te v. P uck et t , 201 0- Ohio

- 6597 , ¶ 15, 9 47 N.E. 2d 7 30 ( Ct. Ap p.) (s ta ti ng rec ord

m ust con ta in “so m e compete nt and cr edi ble eviden ce ind epe nde nt of the def end ant ’s con fe ssi on to

-28-¶ 121 Her e, the circ uit c ourt, the finder of fac t in this c ase, found the testimony of the minors

not to be cre dible. There is nothing in the rec ord which would cause me to doubt this finding
, which was also noted by the dissenting justice below (403 I ll. App. 3d 667, 687 (Appleton, J ., dissenting) ). As a r esult of this finding, the de termination of Austin’s g uilt “then had to be decide d on the evidenc e of his interview with the DCFS investigator and the Pax ton police.” Id

. But convicting a defe ndant solely on the basis of a confe ssion direc tly contra dicts the corpus deli ct i co rr o b o ration require ment. See Sargent
, 239 I ll. 2d at 183; J ulian S. Millst ein, Not e, Co n

fession Corroborati on in New Y ork: A Replace ment for the Corpus Delicti Rule
, 46 For dham L

. Rev. 1205 (1978). I f a naked confe ssion is not corr oborate d pursuant to this require ment, a conviction based o n t he confe ssion cannot be sustained. Sargent , 239 I ll. 2d at 183; see Lueder , 3 I ll. 2d at 488 (citing Bergen , 17 I ll. at 428-29). ¶ 122 I n light of the above, Austin’s conv i ct i o n m ust be reve rsed beca use the State did not satisfy its burden of proof. I would there fore reve rse the delinquency adjudication outrig ht.

¶ 123 J USTI CE KARMEI ER, concur ring in part and dissenting in part: ¶ 124 I write separ ately to express my ag ree ment with J ustice Fr eema n’s separ ate opinion and with a portion of Just ice Thoma s’ dissent. ¶ 125 Wit h respe ct to the latter, I believe J ustice Thomas per suasively demonstrates that trial

co u n sel understood his proper role in this delinquency proce eding and functio n ed

acc ording ly

. Thus, there was no per se conflict of interest. As J ustice Thomas notes , “t h e State had it exactly rig ht when it argued that, ‘a best-intere st-oriented defe nse counsel is not the same thing as a GA L
, as counsel’s loy alties lay firmly and solely with his juvenile client.’ ” Infra ¶ 158 (Thomas, J
., dissenting)

. I disag ree with the majority ’s conclusion, and basis for reve rsal, i.e.
, that “Austin’s attorney opera ted under a per se conflict of interest due
to the fact that he functioned more as a guar d i an a d l i tem than as defe nse counsel.” Supra ¶ 111. ¶ 126 Notwithstanding, I
, like J ustice Fr eema n, believe that there must be credible evidenc e to

corr oborate Austin’s alleg ed o ne-se ntence confe ssion, the exis tence of which was itself a matter of dispute at trial. As one ap p el l at e p anel rec ently put it, the State’s independe nt evidenc e should “inspire belief in the defe ndant’s confe ssion.” People v. Rivera
, 2011 I L App (2d) 091060, ¶ 41. The quality of the State’s “cor roborative” evidenc e in this case fails in that reg ard—some of it can be dismiss ed out of hand as sheer fanta sy

. The trial court conclude d that Wil lie’s testimony “lac ked cre dibilit y ,” J onathon’s was “only slightly more

cre dible,” and Dillon’s was “also suspect.” What is “slig htly more cre dible” than incre dible? I s “suspec t” sy

nony mous with “cre dible”? As J ustice F ree man aptly observe s, “[e]vidence that is not cre d i b l e cannot corr oborate any thing.” Supra ¶ 126 (F ree man, J
., concur ring in part and dissenting in part). Her e, we have, on the record
, the circ uit court’s own assessment of t h e wi t n es s es

. The circuit court never found the t estimony of t he mi nors t o be credible. Moreove r, we have stated that “the corr oboration rule requires t h at there be independe nt evidenc e tending to show that defe ndant committed eac h of the offenses for which he was

est abl is h tha t a cr ime occ urr ed” ). I woul d m ake thi s cou rt ’s implic it cr edi bil it y component exp li ci t.

-29-convicted.” People v. Sargent
, 239 I ll. 2d 166, 185 (2010). The circ uit court, afte r hearing

these children testify
, was only willing to say that “something probably happene d.” That does
not appea r t o re flec t the deg ree of specific ity require d by our jurisprudenc e. I ag ree with J ustice Fr eema

n’s analy sis and conclusion. Austin’s delin quency adjudication should be

reve rsed outrig ht.

¶ 127 J USTI CE THOMAS, dissenting: ¶ 128 Today
, for the fi rs t t i m e, t h e I llinois Supreme Court holds that the proper way for a n appellate court to pr ocee d on revie w is to f irst a djudicate the merits of an issue and next to deter mine if the case eve n prese nts that issue. I cannot a g ree with my colleagues’ decision
to depar t f rom basic appellate proce dure, nor do I ag ree with their conclusion that this case prese nts the issue that they have decide d to adjudicate

. The rec ord is unmistakably clea r that attorney Novak did not serve as a GAL

. Ra t h er , h e functioned solely as a defe nse attorney —and a rema

rkably eff

ective one at that. This case prese nts no issue of hy brid
repr esentation, and the majority has issued an a dvisory

opinion on a set of fa cts not befor e the court. In doing so, my colleagues unfairly demea n what was, in truth, a fine perf ormanc e by attorney Novak, and thei r conclusion that Austin was denied his rig ht to counsel is completely unfounded and finds no support in the rec ord. Mo reove r, despite the court’s
pronou n ceme nt that its reve rsal is “base d on *** the specific fac ts of this case ” ( supra ¶ 111), there can be doubt just how broad the court’s holding actua lly is: no matter how well

a minor’s defe nse attorney perf orms in a delinquency proce eding
, the minor is e ntitled to a

new trial if he can point to any evidenc e in the rec o rd t hat his counsel had a best interests “mindset” ( supra ¶ 94). There i s no justification for such a holding, and I there fore must dissent.

¶ 129 I . The Major ity Opinion I s Writt en B ackw ards ¶ 130 The majority puts the car t before the horse when, befor e deter mining whether this c ase

even inv o l v es hy

brid repr esenta

tion, it addre sses the issue of whether a per se conflict of interest arises when an at t o rn ey serve s both as GAL and defe nse counsel. This is clea rly backw ards. I t makes no sense to deter mine if hy

brid rep re sentation is permissible befor e deter mining if this case even involves hy brid repr esenta tion. The appellate court addre ssed the issues in the proper order

. First, the appellate court prope rly noted that whethe r Novak

serve d as both GAL and defe nse att o rn ey wa s a “thre shold” issue. After it conclude d (incorr ectly

) that he did serve in both capa cities, it then moved on to consider whether such
repr esentation was permissible. 403 I ll. App. 3d at 683-84. ¶ 131 I f this wer e just a matter of sty le, I would be inclined to let it g o. T h i s i s m u ch m o re important than mere sty le, howeve r, as courts must be constraine d by the fac ts befor e them. I f it wer e otherwise, a court could d ec i d e whateve r it wanted at any time, and advisory opinions would be rampant. L et us consider the following two self-e vident propositions: (1) The case i n which it is appropr iate to deter mine whether a defense attorney
may serve as both de fense attorney and GAL is one in w hich the attorney serve d as both defe nse attorne y

and GAL

.

-30-(2) I f the c ase be fore the cour t does not involve an attorne y who serve d as both GAL and defe n s e at t o rn ey , then that case is an inappropria te vehicle in which to deter mine if the same attorney may fill both roles.
I s there any

thing controve rsial about the above two statements? I s it even possible to quarr el with either? I f we acc ept the truth of the above two statements, as we must, then it is obvious that the court must first deter mine if this case involves h y b ri d re p rese ntation befor e adjudicating the merits of the c onflict of intere st issue. ¶ 132 Demonstrating the err or of the majority ’s way s is a simple exercise. First, let us assume that t h e co u rt first addre sses whether hy brid repr esenta tion occur red in this case befor e deter mining whether such repr esenta tion was permissible. One of two things would happen. I f the court deter

mines that there was no hy brid repr esenta

tion, then it will decline to addre ss the conflict issue as not proper ly befor e the court. I ndeed, this court explained in People ex

r el

. P a r t ee v. Murphy
, 133 I ll. 2d 402, 409 (1990), that it will not rea ch the merits of a conflict of interest question if the facts do not support finding such a co n fl ict beca use t hat would mean that the issue is “ not ripe” a nd that any

opinion on the issue would be “pur ely advisory

. ” Alternatively
, if the court deter mines that there was hy

brid repr esenta tion, then it would g o on and a d d re s s whether such represe ntation is permissible. I n neither instance would the cour

t end up with an advisory opinion. ¶ 133 Now l et u s look at what happens with the majority ’s pref err ed approa ch. I f y ou first deter mine that a per se conflict of interest arises when an attorney functions as both defe nse attorney and GAL
, and then deter mine—as the majority incorre ctly does here —that hy brid
repr esentation occur

red, there is no problem. But, if y ou first d et ermine that hy brid
repr esentation is impermissible, but then determine that the case before th e court does not involve hy

brid repr esenta

tion, y ou are left with a purely advisory opinion. An approa ch that inevitably leads to advisory opinions cannot be corr ect. So, while the majority ’s approach ultimately does not cre ate a problem in this particula r case , advisory opinions will inevitably fo l l o w i n the future if this is how t his court wants revie wing courts to proce ed. Moreover,

no one ever wants to conclude that all of their work has been a colossal waste of time, so deter mining that the issue is proper ly befor e the court should always be done befor e the issue is adjudicated. ¶ 134 Ag ain, this is not just a matter of sty le, as this court cle arly explained in Partee

. I n that

case , the issue was whether it was a conflict of interest for the State’s Attorney to repr esent both the county cler

k and the county trea surer , in their officia l capa cities, in a tax indemnity
proce eding

. Partee
, 133 I ll. 2d at 404. This court, in a unanimous opinion, explained why it would n o t b e p roper to answe r this question unless the State’s Attorney was curr ently
repr esenting both parties:

“Ne x t, on the issue of whether dual repr esenta tion is allowed in a tax indemnity
proce eding
, we believe that in resolving that question we wo u l d b e rende ring an advisory opinion

. Ou r j u risdiction is restric ted to case s which prese nt an actua l
controve rsy , and we decline to issue advisory opinions on moot or abstrac t questions of law. ( People ex rel. Black v. Duke s (1983), 96 I ll. 2d 273, 276; In re Marriage of W right (1982), 89 I ll. 2d 498, 500; Underground Contractors Association v. City of

-31-Chicago (1977), 66 I ll. 2d 371, 375.) An advisory opinion results if the court resolves a question of law

which is not prese nted by the facts of t he case. (See Slack v . City of Salem (1964), 31 I ll. 2 d 1 7 4
, 1 7 8 (cour t vacated trial court’s resolution of a ‘hy pothetical’ constitutional issue).) I f it is appar ent that an opinion cannot aff ect the result as to the parties or controve rsy befo re i t , the court should not resolve the question mere ly for the sake of setting a prec edent to g overn potential future case s.” Id. at 407-08. The court ag ree d with the State’s Attorney ’s contention that the cler k was n o t cu rr entl y a party to the suit and that the State’s Attorney was thus not curr ently repr esenting the cler k. The court no t ed that the cler k may be made a party in the future and that, at that time, the State’s Attorney

might be called upon to r epre sent the cler k. Howeve r, bec ause those f acts did not curr ently exis t, the question of whether an impermissible c onflict would be cre ated was not ripe f

or discussion. Id. at 409. The Partee approa ch wa s obviously corr ect. Partee would h av e come out the other way if the majority ’s approa ch wer e followed. The court would have simply issued an advisory opinion on an issue for no other rea son than that the appellant put the argument in its brief. One would hate to see the majority ’s fram ew o rk become standard proce dure in the appellate court, but what choice will the appellate c ourt have? Even in the face of this dissent, the m ajority has failed to offe r a single justification for de parting from standa rd appe llate proc edure

.

¶ 135 I I . There Was No Hy brid Repre sentation in This Case ¶ 136 A. Statement of Facts ¶ 137 Be fore I turn to the hea rt o f t h i s d i s s en t , wh i ch will explain why the majority is unquestionably incorre ct in asser ting that Novak operated under a per se conflict of interest, I must take issue with the m anner in which the majority sets forth the fac ts of t his case

. I n another depar

ture from standard opinion writing
, the majority does something that I have

never seen this court do befo re. Although it provides a narr ative statement of fac ts, it

occa sionally switches to a Q and A format for the sole purpose of sprinkling in c ritiques of Novak’ s tri al s t ra t egy that are not being raised by the parties. For instance, the majority periodica lly criticizes Novak for failing to object. I n one instance, the majority implies that Novak did not object to leading q u es t i o n s (w h i ch are not set forth) ( supra ¶ 18 n.3), but, ty pically , the majority

does not eve n state wha t the obj ection shoul d have been. I n another instance, the majority criticizes Novak for obj ecting a few questions too late (e ven thoug h his objection was overr

uled). Supra ¶ 14. When to object, of course , is solely a matter of trial strateg y , and this court’s previous position had alway s been that it will not second- g uess matters of trial s t ra t egy , even when being asked to adjudicate an ineffe ctive assistance of counsel claim. People v. Manning
, 241 I ll. 2d 319, 333-34 (2011). Now, appar ently
, the court will n o t o n l y s ec o nd-guess trial strateg y , it will even do so in the statement of facts

. The majority fre quently does not state what the obj ection shoul d have been, or wh y i t b elieves the objection would have been succe ssful, so it is difficult to even cra ft a response to its critiques. ¶ 138 Fur

ther, Austin has raised no is s u e wh at s o ev er ab o u t 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 ineffe ctive assistance of counsel arg ument. Moreove r, it is not even part of the majority ’s ana l y s i s

. W hen the majority sets forth its rea sons for reve rsing
, it makes no mention of Novak not objecti n g o ft en enough. I f Austin is raising no issue about the 8 fre quency of Novak’ s objections, and that play s no part in the majority ’s analy sis, then why is the majority sprinkling these critiques throug hout its statement of fac ts? I t seems that the only purpose this serve s is to prejudice the rea der ag ainst Novak befor e the rea der g ets to the court’s analy sis. A differ ent conclusion might be possible if the court als o h i g hlighted examples of the prosecu t o r fa i l i n g to object or noted the many instances of eff ective lawy ering by Novak. Fa iling that, what possible conclusion is there other than that the court wants to paint Novak in a s neg ative a lig ht as possible? ¶ 139 Most of the majority ’s critiques of No v ak ar e basele ss, any way

. First, it g oes without
saying that a judge could take the transcr ipt in any criminal case and, with all the time in the world and not in the heat of t rial, find instances i n which an attorney could have objected, could have objected ear lier, or let a leading question g o by

. Since when has that ever meant that an attorney is not functioning as defe nse counsel? I t is a car dinal rule that courts should not, with the benefit of hi ndsight, second-g uess t he st rate g ic decisions of def ense counsel. People v. Jacobazzi
, 398 I ll. App. 3d 890, 922 (2009). Moreove r, this was not a jury trial in which there is a dang er that the trier of fac t will be improperly sway ed. Rather, it was a bench trial, at which the judge is presumed to consider only rele vant, competent testimony

. People v. Kerwin , 159 I ll. 2d 436, 446 (1994). ¶ 140 L et us now look more closely at a few of the majo ri t y ’s co m p l ai n t s. The majority complains that Novak did not object soon enoug h when the prosec utor was asking Be cky a number of questions about Austin’s alleg ed admission at the police station

. T h e m aj o rity
sug g ests that these questions wer e improper beca use Be cky s ai d that she had not been
prese nt. Supra ¶ 39. Howeve r, t he majority imm ed iately demonstrates the err or of its own statement by setting forth questions from the transcr ipt showing that the prosec utor was not asking Be cky any questions that would have require d her persona l knowledg e ab o u t the incident. Rather, he was asking her about h er own revie w of the police repor t and

conver sations that she had with her husband and Austin about the incident. Novak objected
t o this line of questioning on hear say g rounds, but the court overruled his objec t i o n

. T h e majority sug g ests that N o v a k c o uld have objected a few questions ear lier, but what differ ence would that have made? What is the majority sug g esting here
, that if Novak would have had

an objection overr

uled a few questions ear lier h e would have been a defe nse attorney , but since he waited a few questions too long he was a GAL ? And, if that is not what the majority is s ug g esting
, then why include this criticism at all? Fur ther, not only did the trial court

I f t he maj ori ty did re ly on t his , it woul d be whol ly imprope r, a s Austi n has m ade no s uch 8

a r gu me n t

. In P e opl e v. Giv ens , 237 I ll

. 2d 311, 323-25 (20 10)
, thi s cou rt very cl ear ly sai d tha t it woul d not sea rc h t he r eco rd for una rgued o r u nbr ie fe d r eas ons to re verse a tr ia l cou rt ’s j udgm ent

. D o i n g so woul d have the ef fe ct of tr ans for m ing thi s cou rt ’s rol e fr om tha t of j uri st to tha t o f advoca te

. Id. at 324

.
-33-overr ule Novak’ s objection, but the testimony that came out was actua lly helpful to Austin. All that the prosec utor’s questions acc omplished wer e to once ag ain allow Be cky to say both that the police wer e being nasty and calling Austin a liar and that Austin denied confe ssing. ¶ 141 Surely the majority knows that just beca use an attorney can object does not mean that an attorney should object. Often cross-e x amination acc omplishes nothing more than allowing the witness to g o over his or her testimony ag ain, further burning it into the brain of the trier of fac t. Clearly it is proper strateg y for an attorney to forg o objections that he could make if he believes that the testimony is helping his side. Her e, the answe rs Be cky was g iving wer e helpful to the defe nse, so there is no justification for the majority ’s criticisms of Novak. I s 9 it now the position of the I llinois Supreme Court that an attorney should make ever y objection that the law allows, even when the testimony coming from the stand is he lpful to that party ’s case ? And does the court fee l so strong ly about this that it is worth interrupting its statement of fac ts to point it out? ¶ 142 The majority immediately follows the above critique by once ag ain criticizing Novak for failing to object to testimony that was helpful to his case

. The majority s ets forth sever al
pag es of transcr ipt in which the prosec utor was questioning Be cky about previous statements that she made that she believed that J onathan and Dillon had been abused befor e being place d in her home. Supra ¶¶ 41-44. She confirme d to the prosec ution that she had this belief and that she felt that it wa s important that DCFS be made awa re of the information. The
prosec utor then attempted to deter mine whether she had any simil ar knowledg e with respe ct to Wil lie. As the majority notes, the trial judge eventua lly sug g ested that the prosec utor move along

. This in no way means, howeve r, that Novak should have been objecting

. Obviously
, the defe nse was hoping to c onvey that the sexual knowledg e and alleg ations of the victims

wer e based on experience s that they had before being place d in J im and Be ck y ’s h o me. I ndeed, Austin is relying on that very point to try to obtain a reve rsal of his conviction. I n his

rea sonable doubt arg

ument, Austin argues that Dillion’s claims “we re far from spontaneous, and he had a source of precoc ious sexual knowledge wholly unrelated t o h i s time at the M’s .” (Emphasis added.) Be cky ’s answe rs o n cr o s s-examination wer e supportive of this point, and the prosec utor failed to dislodge her from her statements. But, appar ently
, the only
proper strateg y for Novak t o employ would have been to object to questions that wer e eliciting te stimony

helpful to his side. ¶ 143 The majority also seems to find fault with Novak for conce ding in his closing argument that this was a “toug h case ” (af ter editorializing that the prosec utor’s argument was “for cef ul” but that Novak’ s was not). Supra ¶¶ 52, 56. But, Novak neede d to have cre dibilit y in his closing argument. What wa s he supposed to sa y , that a case in which three witnesses

are acc using y our client of sexua l ab u s e and two witnesses are saying that y our client confe ssed to the crime is a slam dunk for acquittal? How would that have g one over with the trial court? ¶ 144 I truly reg ret having t o d i v ert the focus of this dissent from the important leg al issues

As we wil l see , thi s is j ust one exa m ple out of m any of ei th e r A u s t i n or the m aj ori ty 9

cr it ic izing Novak for p rop er and ef fe ct ive l awyeri ng.

-34-befor e the court. The above discussion is nece ssary only beca use the majority has chosen not to simply set forth a narr ative st atement of the fac ts releva nt to the issues before the cour t. I t is unfortunate that a majority of this c ourt believes that it is appropr iate in a statement of fac ts to second-g uess an attorne y ’s trial strate g y on matters not being raised by the par ties.

¶ 145 B. Novak W as Not a GAL ¶ 146 On most issues that come befor e the court, a rea sonable argument can be made on both sides, and there is leg itimate room for disag ree ment. Whether Novak serve d as a GAL in this

ca s e i s n ot one of those issues. The only leg itimate conclusion t hat can be drawn from th e

rec ord is tha

t N ovak serve d only as a defe nse attorney

. As the majority conce des, a GAL is appointed by the court

. See 705 I L CS 405/2-17(1), (3) (West 2010). I n a delinquency
proce eding
, a GAL is appoin t ed o nly if the court makes one of two statutory finding s: (1) there may be a conflict of inter est betwe en the minor and his pa rents or other custodian; or (2) it is otherwise in the minor’s best interests that a GAL be appointed. 705 I L CS 405/2- 17(3) (West 2 010). The majority claims that it makes its deter mination of whether Novak functioned as a GAL by

“turn[ing] to the rec ord” ( supra ¶ 87), but unless the m ajority can point to the pag e in the rec ord wher e the trial court made the requisite statutory finding and appointed Novak a GAL
, the discussion should end here

. The re cord clea rly shows that Novak was hired by Austin and Ricky ’s pare nts to defe n d t h e m i sdemea nor alleg ations
ag ainst 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 imag ine himself into the role of a GAL or become one in any other way besides a court appointment.

¶ 147 C. There W as No Per Se Conflict of Interest ¶ 148 Once we acc ept the obvious truth that Novak did not serve as GAL in this case , we c an stop talking about per se conflicts of interest. As this court has clea rly explained, and as the majority acknow ledg es, a per se conflict of interest ex i s t s wh ere “ce rtain fac ts about a defe nse attorney ’s status eng ender
, by themselves, a disabling conflict.” (Emphasis added.) People v. Taylor
, 237 I l l

. 2 d 356, 374 (2010); People v. Hernande z , 231 I ll. 2d 134, 142 (2008). I n other words: “[w]hen a defe ndant’s attorney has a t i e to a person or entity that would benef

it from an unfavor able verdic t for the defe nd an t , a per se conflict arises.” Hernande z , 231 I ll. 2d at 142; People v. Janes
, 168 I ll. 2d 38 2
, 3 8 7 (1995); People v. Spreitzer
, 123 I ll. 2d 1, 16 (1988). Or, as the appellate court has explained, per se conflicts exis t wher e defe nse counsel has profe ssional commitments to others clea rly antag onistic to the intere sts of the ac cused. People v . Claybourn , 221 I ll. App. 3d 1071, 1080 (1991). ¶ 149 Apply ing the above law, how can there possib l y be a per se conflict of interest in this

case if Novak was never appointed GAL ? As we h av e clea rly explained, fac ts about the attorney ’s status , all by themselves, create per se conflicts of interest. Here, No v ak ’s o nly
status was that of a defe nse attorney , hired by Austin’s pare nts, to repr esent Austin in a delinquency proce eding

. Novak did not have a t ie t o any person or entity who would have benef itted from an unfavor able verdic t for Austin (see Hernande z , 231 I ll. 2d at 142); nor did he have profe ssional commitments to people who had interests antag onistic to Austin’s (see

-35-Claybourn
, 221 I ll. App. 3d at 1080). Novak’ s sole profe ssional commitment was to Austin

and his brother, and, as Novak himself explained on the rec ord, he had a duty to no one but Austin and his brother. ¶ 150 This court has previously reje cted a defe ndant’s attempt to rely on the per se conflict of interest rule when the requisite status was not prese nt. In People v. Morales
, 209 I ll. 2d 340 (2004), the defe nse attorney also repr esente d a person, Her n an d ez, who was a potential

w itness ag ainst the defe ndant. Moreove r, some of Her nandez’s out-of-c ourt sta

te me n ts a b o ut the defe ndant wer e admitted into evidenc e at the defe ndant’s sentenci n g. W e rejected the defe ndant’s claim that this was a per se conflict of interest beca use, “the fac t rema in[ ed] that [Hernande z] was never a witness. Thus defe nse counsel never assumed the status of attorney for a prosec ution witness.” Id. at 346. The exact same analy sis should be applied here

. The fac t rema ins that the court never appointed Novak a GAL
, and thus he never assu m ed t h e status of a GA L

. ¶ 151 The S t ate quite sensibly responde d to Austin’s wholly improper request that this court issue an advisory opinion on a set of fac ts not befor e the court by pointi n g o u t that “[t] he question is not whether Novak improperly assumed two confli cting roles, but whether he f u lf il le d h is o n e and only role—that of defe nse counsel—a ppropriate ly .” The State notes th a t,

even if Novak misperce ived his role, that clea rly does not transfor

m this into a per se conflict

case : “[r]ega

rdless of how responde nt’s counsel perc eived his role, it is illogica l to claim that counsel was conflicte d in executing two differ ent roles when he was not assig ned both roles.” Thus, the S tate had it exactly rig ht when it s t ated that, “[r]espondent’s arg uments direc ted
to the propriety of hy

brid repr esentation there fore invite the Court to eng ag e in a purely hy pothetical exerc ise.” ¶ 152 The majority does not respond to the State’s argument on this point, but, clea rly
, the State is corr ect. Assume for the sake of argument t h at a defe nse attorney in a delinquency
proce eding misperce ives his role as more like that of a GAL

. Which of these questions better descr ibes the issue fac ing the court: (1) Did the attorney misunderstand the role of a defe nse attorney in a delinquency proce eding, and, if so, did that misperce ption prejudice the defe ndant? or (2 ) Di d t h e attorney misunderstand the role of a defe nse attorney in a delinquency proce eding
, and, if so, did this misperce ption transfor m the attorney into a GAL
, such that a per se conflict of interest arose ? I s it not obvious tha t it is the former ? How can

an attorney ’s misperce ption of the role of a defe nse attorney in a delin q u ency proce eding
g ive the attorney the status of a GAL
, which is a position that require s a court appointment? And, if the attorney does not have the status of a GAL
, then there is no hy brid repr esentation 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 ca s e l aw and opened the door to the possibili ty that the courts will beg in to find per se conflicts based on nothing other than an attorney ’s “minds et” ( supra ¶ 94). I s the “mindset” holding relevant only in this contex t, or ca

n it be applied in any per se conflict of intere st situation? I f there is any limit ing pr inciple on this holding, the majority should say

what it is.

-36-¶ 153 D. Novak Func tioned Solely As a De fense Attorney ¶ 154 As I stated above, I reje ct out of hand the notion that a per se conflict of interest betwee n an attorney ’s dut ies as GAL and defense attorney can ar i s e i n a case in which the attorney

was not a GAL

. Assuming the majority ’s position for the sake of arg ument, howeve r, Austin still is not entitled to r elief beca use the rec ord is unmistakably clea r that Novak functioned solely as a defe nse attorney

. We g ot to the point we are at today —with Austin reque sting an advisory opinion on an issue not befor e the court and multipl e entities joining in an amicus curiae brief on a

n issue not before the cour t—as a re sult of a surprising ly brief a naly sis by the appe llate cour

t. This is t he entiretyof the a ppellate c ourt’s ana ly sis on this point: “Althoug h the trial court never expressly appointed Novak as g uardia n ad litem
, both
t h e co u rt and Novak himself conce ived his role as that of a g uardia n a d litem —repres en ting the minors’ and society ’s best interests —rathe r than that of [1 0 ]

a traditional defe nse attorney

. Acc ording ly
, we trea t the issues raised by responde nt

as though the trial court formall y ap p o i n t ed Novak as g uardia n ad litem .” 403 I ll. App. 3d at 683-84.
I n other words, the appe llate cour t was not the slighte st bit concerne d with looking at how Novak actua lly perf

ormed in this case

. All that the appellate court neede d to look at was the trial court’s comment and the brief speec h that Novak g ave befor e t h e s tart of the adjudicator

y hear ing. The appellate court appar ently believed that these comments show that Novak so fundame ntally misunderstood t h e p roper role of a defe nse attorney in a delinquency proce eding that he, essentially
, at that moment, beca me the exact equivalent of

a GAL
, such that the court neede d to deter mine whether a disabling per se conflict of interest

arose

. 1 1 ¶ 155 The majority ’s position is somewhat more rea sonable. The majority identifies the issue
not so much as how Novak conce ived his role, but as how he actua lly functioned during the
proce eding

. The majority notes that Austin argued that he was deprive d of his constitutional rig ht to counsel in his defe nse beca use Novak “

performed less as a defe nse attorney and more

as a g uardia

n ad litem .” (Emphasis added.) Supra ¶ 63. The majority states that, “[w]e must still consider whether it is constitutionally and st at u t o rily permissible for a single attorney to function as both defense counsel a n d GA L when repr esenting a minor in a delinquency
proce eding ” (e mphasis added) ( supra ¶ 65) and later conclude s that, while Novak w as not actua lly appointed as GAL
, he “ functioned [as one] in the case at bar” (empha sis added) ( supra ¶ 87). Fur

ther, the majority acknow ledg es that the problem arises only when counsel

“ attempts to pe rform the role of G AL as we ll as defe nse counsel” (empha sis a dded) ( supra

Nei the r the tr ia l cou rt nor Novak sai d tha t Novak was re pre sen ti ng soc ie ty’s bes t int er est s. 1 0

I n one sen se, however
, t h e app el la te cou rt ’s er ror is m ore unde rs ta nda ble tha n the 1 1

m aj ori ty’s bec aus e the appe ll at e cour t did not acknowl edge or disc uss the st at us component of the
per se con fl ic t of int er est rul e. T he app el la te cou rt al so did not fi nd tha t a per se con fl ic t of int er est exi st ed, so it m ight have fa il ed to app re ci at e the dis rup ti on to the la w tha t woul d occ ur by ignor ing the st at us component

. By con tr ast , the m aj ori ty doe s re cognize the st at us re qui re m ent ( sup ra ¶ 80)
, but th en i nex pli cab ly fa il s t o en for ce it

.
-37-¶ 84), and thus conclude s that it needs to make a “ r eali stic appraisal of defense counsel’s

professional relationship to someone other than the defe ndant” (empha ses added) (interna l quotation marks omitted) ( supra ¶ 83). ¶ 156 Unfortunately
, howeve r, once it moves o n to the analy sis, the m ajority does not do any of the things it promised to do. As did the appellate court, the m aj o ri ty focuse s almost exclusively on the speec h that Novak g ave befor e the hear ing even started. The majority does
not co n s i d er how Novak functioned during the proce eding
, does not cite ex amples of him attempting to perf

orm the role of GAL
, and does not make a rea li s t i c ap p raisal of his profe ssional relationships to other persons. I nstead, the majority chang es the focus entirely and claims that it is reve rsing not based o n h o w Novak functioned at trial but rathe r on Novak’ s “mindset” prior to trial and the “tone” o f h i s re prese ntation. Supra ¶ 94. The majority does not explain the disconnec t betwee n the law it sets forth and the law it applies. Ex cept fo r t h e t ri al court’s statement and Novak’ s brief speec h, the only things that the majority points to in try ing to make the case that Novak functioned as a GAL rathe r than as

a defe nse attorney are : ( 1) Novak’ s failure to file a motion to suppress that would have had

no chanc e of succe eding ( supra ¶ 99); and (2) Novak’ s pursuing of a line of questioning that allowed him to make a

more e ffe ctive closing argument. ¶ 157 I n making its case that Novak functioned as a GAL rathe r than as a defe nse attorney , the majority relies on four things: (1) the trial court’s statement to Austin’s pa rents that Novak
repr esente d wha t wa s i n t h e best interests of Austin and R icky and that this may or not be what the minors or their pare nts thought was in the minors’ best interests; (2) the brief speec h that Novak g ave befor e the adjudicator y hear ing beg an; (3) Novak’ s failure to file a motion
to suppress Austin’s statement to the police; and (4) Novak eliciting testimony from Austin’s
pare nts that they wer e opposed to child sexual abuse and that they would acc ept the
g overnme nt’s hel p i n d ealing with it if they believed that it happene d, and then rely ing on this point in clo s i n g argume nt. After explaining why these thi ng s did not make Novak t he functional equivalent of a GAL
, I will do what the majority promised, but failed, to do—consider how Novak actua lly functioned in the proce edin g a n d ma k e a r e a li s ti c appra isal of Novak’s profe ssional relationship to people other than Austin. ¶ 158 As for the trial court’s statement, I find it larg ely irrele vant. No matter what the trial court thought Novak’ s role s h o uld be, as long as Novak functioned as a defe nse attorney for Austin, then Austin could not have suffere d any prejudice from the trial court’ s statement. Ag ain, as even the majority conce des, the proper focus here is on how Novak functioned in the case

. Moreove r, the trial court’s descr iption of what it viewed Novak’ s role to be was not , as the majority claims, “the classic descr iption of a g uardia n ad litem ” ( supra ¶ 90). I ndeed, the classic descr iption of a GAL is g iven in the majority ’s own opinion, wher e the majority explains t hat, “ ‘ [a] g uardia n ad litem functions as the “ ey es and e ars of the court” and not
as t he ward’s attorney .’ ” Supra ¶ 69 (quoting In re M ark W

. , 228 I ll. 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 I ll. App. 3d 1166, 1171 (2005); In re R.D.
, 148 I ll. App. 3d 381, 387 (1986). Thus, althoug h the court stated that Novak would repr esent the best interests of the minors, the State had it exactly rig ht when it argued that, “a best-intere st-oriented defe nse counsel is not the same thing as a GAL
, as counsel’s loy alties lay firmly and solely with his

-38-juvenile client.” And that is exactly wher e Novak’ s loy alties wer e. Novak stated that,”I have

duty to these two boy s, nobody else.” So, even if the court er re d i n s t ati ng that Novak
repr esente d 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 fo r t h e 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 focuse s larg ely on the fac t that Novak stated that he, like the State, the court, and Austin’s pare nts, was seeking the truth i n t h i s m atter. To say the least, I find it very interesting that both Austin and the majority

seem to equate the word “truth” with Austin’s g uilt. A defe nse attorney s ay i n g that he is seeking the truth could not be more common. This does not mean that he is al i g ning 1 2 himself with the State. Truth is not the special pr ovince of the prosec ution. ¶ 160 Notably
, althoug h Novak stated that ever y one share d the g oal o f s ee k i n g t he truth, he

never even hinted that he and the State had the same view of the truth, and his entire defe nse

case was built ar ound try ing to disprove the prosec ution’s case . Novak state d that the boy s had consistently denied the alleg ations, that it was a contested hear ing, that the defe nse disputed the prosec ution’s claim that Austin confe ssed, and that he had “g rave doubts” that the abuse occur

red. Novak called two of Austin’s siblings and both of Austin’s pare nts to the stand to testify that they either did not see any sexual activity or that they did not believe any sexual activity

had occ urre d. When Austin’s f ather testified, Novak e licited testimony that Austin had not confe ssed any acts to the police. I n his closing argument, Novak argued that the State had not proved his clients’ g uilt bey ond a rea sonable doubt. Novak arg ued that the

acc users had contra dicted themselves, that they lacke d cre dibilit y , and that their statements

wer e not worthy of belief. Clearly
, the “truth” that Novak was try ing to establish was that the
acts did not occur

. The majority claims that “in context” the word truth ref ers only to Austin’s g uilt. Supra ¶ 98. I f an entire defe nse case built around showing that the abuse did not happen is not “c ontext ” then I do not know what is. ¶ 161 The majority also objects to Nova k : (1) stating that Austin’s pare nts’ objective was to lear n the truth; and (2) eliciting testimony that the pare nts objected to child sexual behavior and would wa

nt to put a stop to i t if it was happening

. This is y et another example of the 1 3 majority criticizing Novak for eff ective lawy ering

. As the majority ’s own opinion demonstrates ( supra ¶¶ 53-55), Novak used these points to try to win an acquittal for Austin. I n his closing argument, Novak argued that, beca use Austin’s pare nts wer e opposed to child sexual behavi o r “i n t h e s trong est possible terms,” and that they wanted to know if it was

I n J ohnn ie Coch ra n’s ope nin g stat ement i n t he O.J . Si m pso n t ri al , he st at ed t hat “we ar e 1 2

now embarked upon a sea rc h for j ust ic e, thi s sea rch for tr uth
, thi s sea rc h for the fa ct s,” and “[ y]ou have thi s ra re oppo rt uni ty, it see m s to m e, to be par ti ci pan ts in thi s sea rc h for j ust ic e and for tr uth ” (Emphase s add ed.) htt p:/ /a rt ic le s.l at imes.co m /19 95- 01- 26/ news /mn- 2470 5 _1_o pen ing- st at ement.

Aust in doe s not re ly on Novak el i c i t i n g thi s te st imony
, nor doe s he m ake any ar gum ent 1 3 wit h r esp ect to Novak’s cl osi ng argum ent . Again, in Giv ens , th is cou rt una nimousl y he ld tha t i t i s not app rop ri at e for a re vi e w i n g cou rt to sea rc h the re cor d for una rgued and unbr ie fe d re aso ns to

re verse a t ri al cou rt ’s j udgm ent

. Giv ens , 237 I ll . 2d at 323 . I t i s no t c le ar what has cha nged.

-39-happening so that they could put a stop to it, the judge should find them cre dible when they

testified that they questioned Austin and Ricky and did not b elieve that the events had happene d. Clearly
, the pare nts believed that t h e truth was that Austin and Ricky wer e innocent, and Novak specific ally argued that, beca use they wer e the ty

pe of people who would put a stop to these acts if they wer e happening
, the judge should be persua ded by the fac t the pare nts questioned Austin and Ricky over and over ag ain and did not believe that any abuse ha d occur

red. ¶ 162 Novak was in a tough position, having to argue that the court should fi n d Au s t i n ’s
pare nts cre dible. Obviously
, the trier of fac t will know that pare nts are biased in favor of their children. No v ak had to do something to boost the pare nts’ cre dibilit y

. What else could he have done? Does the majority believe that Novak would have been more eff ective s i m ply
arguing, “they ’re his pare nts; take their word for it”? The test imony that Novak elicited in

no way harme d Austin; its only eff ect was to allow Novak to make a more eff ective closing
argument. Does the majority honestly believe that Novak’ s intention was any thing other than this? Ag ain, not even Austin argued that this wholl y p ro per defe nse strateg y meant that Novak was acting as a GAL

. Once Novak’ s statement prior to trial, and Novak’ s questioning of Austin’s pare nts, are put i n t h ei r p roper context, it is clea r that saying that the pare nts “wa nt[ ed] to know the truth” in no way made Nova

k the func tional equivalent of a GAL

. ¶ 163 The majority also finds fault with Novak f or say ing that he believe d the ac ts neede d to stop if they had happ en ed and that “[a]n intervention is not inappropria te by way of
g overnme nt to help these boy s if such things happene d.” Of course Novak believed that the child molestation should stop if it was occur ring

. He did not c heck his f undamental human dece ncy at the door when he ag ree d to repr esent Austin and Ricky
, and this statement in no way meant that he was not g oing to provide them with a proper defe nse. As for Novak’ s belief that an intervention by way of g overnme nt was appropr iate to help the boy s if the acts had occur red, how does that mean that Novak was not functioning as a defe nse attorney ? A lawy er’ s job as advoca

te is to “zealously asser

t[ ] the client’s position under the rules of the adver sary sy stem.” I llinois Rules of P rofe s s i o nal C onduct of 2010, Preamble: A L awy er’ s Responsibili ties ¶ 2. Ther e is no require ment that a defense attorney have the mindset that
state action is not appropr iate if his client committed the crime. Surely the majority does not believe that attorney s who repr esent people such as Richard Speck or J ohn Way ne Gac y g o into trial with the bel i ef that, even if their clients committed the crime, they deser ve no punishment. Her e, it does not matter at all that Novak believed that a go v er n m en t intervention was appropr iate if the boy s committed the crime if Novak did hi s j o b of zealously asser

ting his clients’ position under the rules of the adver sary sy stem. His clients’ position was that they did not do the acts alleg ed, and Novak zealously asser ted that position. His entire defe nse case was built around showing that the acts did not happen, and he argued
to the court that the State had not established g uilt bey ond a rea sonable doubt. The majority
notes that Austin argued that he was entitled to an attorney who: (1) g ave him his undivided loy alty ; (2) zealously safe g uarde d h i s rig hts and confide nces; and (3) acte d in acc ordanc e with his client’s wishes. Supra ¶ 63. Where i s t h er e any evidenc e that Novak failed to do these thing s? ¶ 164 The majority also complains that, when Novak was explaining why he was repr esenting

-40-both Austin and Ricky
, when he might not do so in an adult case , Novak stated that, “I don’t

view such a proce eding as adver sarial as it might be if it wer e an adult case .” See supra ¶ 92. But the majority agrees with Novak. The majority sp ec i fi ca l ly states that, “a delinquency trial is not as adver sarial as a criminal trial.” Supra ¶ 86. Clearly
, then, there is nothing in Novak’ s statement that rende red him the functional equivalent of a GAL
, or that in any way meant that he w as not g oing to f ulfill his role as defe nse counse l. ¶ 165 The only other thing that t h e m aj o ri t y p o ints to in try ing to make the case that Novak functioned as a GAL rathe r than as a defe nse counsel is that Nova k never attempted to suppress Au s t i n ’s statement to the police. Notably
, howeve r, the majority ref uses to say whether it believes that such a motion would have had any chanc e of succe eding

. And, if the motion had no chanc e of succe ss, then it is illogica l to claim that Novak was not functioning as def ense c ounsel by

failing to file it. ¶ 166 The appellate court conclude d that such a motion likely would not have succe eded. 403 I ll. App. 3d at 682-83. Th e ap p el l at e court pointed out that in In re G.O.
, 191 I ll. 2d 37 (2000), this court upheld a 13-y ear -old juvenile’s confe ssion as voluntary when he was interrog ated by

the police, a lone, at 3:30 a.m. The juvenile had be en in custody for se vera l hours befor e the questioning commence d. This court held that the rele vant fac tors to cons ider

are the responde nt’s ag e, intelligenc e, backg round, experience
, mental capa city
, education, and phy sical condition at t h e time of the questioning, the leg ality and duration of the detention, t he duration of t he questioni ng , and any phy sical o r mental abuse by the pol ice, i n cl u d i n g t h e exis tence of threats or promises. Id. at 54. The court also held that, when a juvenile’s confe ssion is involved, a signific ant fac tor to consider is whether the juvenile had

an opportunity to confe r with an adult conce rned with his welfa re. Id. at 55. The G.O. court held that the fac tors supported finding G.O.’s confe ssion voluntary
, even though he did not have a conce rned a dult with him

. Id. at 56-57. ¶ 167 The appellate court noted that t h e ci rc u m s t an ce s here are less extreme than in G.O. Austin is three y ear s older than G.O. was, he arr ived at the Pax ton police station voluntarily
, an d he was questioned in the prese nce of his fathe r. 403 I ll. App. 3d at 683. The m aj o ri t y argues that Novak could have broug ht out t h e fac t that Austin had a lear ning disability

. Howeve r, there is no indication that Austin had any trouble understanding the police’s questions, and he had his fathe r by his side the whole time. Even had this fac t been broug ht out, the fac tors wo uld still clea rly weig h in favor of finding the admission voluntary

. Moreove r, we know for a fac t that the trial court would have denie d t h e m o t i o n. When Austin’s subsequent attorney argued that Novak had been ineffe ctive for failing to move to suppress the state ment, the trial cour t rejec ted the ar g ument out of hand:
“With respe ct to the Motion to Suppress, I believe, the State’s co m m en t s are

corr ect. This was not a custodial interrog ation. The Respondent Minor’s fathe r was there
, and the testimony was quite clea r t h at t h e interview was terminated in midsenten ce o r i n the middle of the interview by the fathe r at the point that the Minor

was admitting in [ sic ] some misconduct, as alleg ed in this case

. So, I don’t know how it is ineffe ctive [not ] to file a Motion to Suppress under those circ umstances. I t was not a custodial interrogation, and, in fac t, the Minor and his fathe r terminated the questioning in mid-sente nce pr actica lly .”

-41-The State argued in the trial court that, “it is not ineffe ctive assistance of counsel to choose

not to file a motion which had no merit and no hope of succe ss.” I would add that failing to file such a motion also does not mean that an attorney was not functioning as defe nse counsel in the case

. Throug hout its opinion, the majority ref uses t o gi v e No v ak the benef it of the d o u bt about any

thing, and ever

y thing he did is portray ed in the worst possible light. F ro m t h e majority ’s perspe ctive, it cannot be that, as a veter an criminal defe nse attorney of 30
y ear s’ experience
, Novak knew that such a motion had no chanc e of succe ss. Rather, it had to be that he wa s functioning as a G AL instead of a s a def

ense attorney

. ¶ 168 Moreove r, the defe nse’s position in this case wa s t h at Au s t i n d id not confe ss and there fore there was no statement to suppress. Whil e the law does allow someone to move to suppress a s t at em en t that he denies making (see People v. Norfleet
, 29 I ll. 2d 287, 289-91 (1963))
, sure l y t h e majority can appre ciate the prac tical difficulty
, from a cre dibilit y standpoint, of first arguing that y our client confe ssed only becaus e of overbe aring police conduct, and then prese nting a case to that same judge that y our client never confe ssed. Her e, it is entirely possible that Novak knew that the motion had no chan ce o f s u cc es s and that there was no point in pursuing it, espec ially if he was g oing to prese nt a case that there was

no confe ssion. This has previously been the ty pe of strateg ic decision that this c ourt would

never second guess. ¶ 169 Now let us turn to a consideration of how Novak actua lly functio n ed i n t h e ca s e. Although the majority failed to do so, it asser ts that we must make “ ‘a rea listi c appra isal of defe nse counsel’s profe ssional rela tionship to someone other than the defenda nt under the circ umstances of eac h case .’ ” Supra ¶ 83 (quoting People v. Daly
, 341 I ll. App. 3d at 376). Her e, Novak’ s only profe ssional rela tionship was as a defe nse attorney hired to repr esent the misdemeanor alleg ations ag ainst Ricky and Austin. What are these other profe ssional relationships to which the majority ref ers? The majority also claims that the rec ord contains “strong evidenc e” that Novak was not acting as defe nse counsel in this case

. Supra ¶ 101. 1 4 Really ? Novak zealously pursued his clients’ position that they did not commit the char g ed offe nses. He cross-e x amined the State’s witnesses, he put on witnesses to dispute the State’s version of events, and he forc efu l l y argue d that the State had not met its burden of proof. That sounds like a def

ense attorney . Her e, I

would turn the majority ’s statement around on it and ask wher e is the “strong evidenc e” that Novak was functioning as a GAL in this case

or that he was “attempt[ing] to fulfill the role o f GA L ” ( s u pra ¶ 86)? Where is there any evidenc e that he was acting as the ey es and ear s o f t h e co u rt , t hat he was betra y ing client confide nces, was more interested in the best interests of society
, or went ag ainst his clients’ expressed wishes? The majority seems to sug g est that, no matter how eff ective Novak was, if it can find any examples of how he could have done a better job, thi s means that he was functioning as a GAL

. This is a complete non sequitur. I n any criminal case , with the benef it of hindsight and the pressure of trial off, a court can alway s find examples of things that an

T he m aj ori ty con tr adi ct s it se l f
, h o w e ver, by a ls o st at ing tha t the re cor d “cl ear ly” sho ws 1 4 tha t Novak was fun ct ion ing as def ens e cou nse l. Supr a ¶ 88. So, acc ord ing to the m aj ori ty, the re cor d

con ta ins st ron g eviden ce tha t Novak was not fun ct ion ing as def ens e cou nse l, but it al so sho ws tha t he cl ear ly was fu nct ion ing as def ens e c ouns el . W hic h i s i t?

-42-attorney could have done better. How is that in any way rele vant to deter mining whether the attorney was func tioning as a

GAL ? ¶ 170 L et u s al s o co n s i d er No v ak ’s m o s t i m p o rt an t s t ra t egic decision as def ense counsel—a llowing the State to prese n t t h e t estimony of t he accuse rs by way of vi deotape

. Although the majority does not rely on this as support for its conclusion that Novak was not functioning as a defe nse at t o rn ey , this was a principal rea son that Austin argued both that Novak was ineffe ctive and that Novak was so conflicte d in executing both the role of GAL and defense cou n s el t h at reve rsal was require d without proof of prejudice

. This is another example of Novak be ing c riticized for ef fec tive lawy ering

. ¶ 171 Novak conce ded that he was g iving up Austin’s and Ricky ’s rig ht to cross-e x amine the

acc users, but he explained that he had two strateg ic rea sons for d o ing so: (1) videotaped testimony is less persua sive than live testimony ; and (2) if Novak ag ree d to proce ed this way , the S tate wou l d agr ee to rec ommend probation i f t he mi nors were adjudicated delinquent. One only needs to re view the testimony of the acc users as set for

th in the majority

opinion
to see what a smart choice this was. On the videotape, the acc us er s both contra dicted themselves and told stories that came acr oss as ridiculous on their fac e. By proce eding by
way of videotape, Novak alre ady had the acc users coming acr oss a s less than cr edible, and he was g iving the State no opportunity to reha bilitate them. And Novak’s strateg y worke d flawle ssly

. As the majority co n ce d es, the trial court found that Wil lie was not cre dible, J onathan was only slightly more cre dible, and that Dillon’s testimony was “suspec t.” Thus, the trial judge found that the testimony
, by itself, was insufficient to support an adjudication, and he acquitted Ricky entirely

. And, as t h e j u d g e explained, he adjudicate d Austin 1 5 delinquent only

beca use he f ound that his admission to one of the acts was proved bey ond

a rea sonable doubt and that the admission, t o g ether with the State’s other evidenc e, was sufficie nt to adjudicate Austin delinquent. The clea r implication of the t ri al court’s 1 6 statement is that, had Austin not confe ssed, he would have bee n acquitted too. ¶ 172 Austin argues that, had Novak not ag ree d to allow the Stat e t o p ro ce ed b y way of videotape, he could have erode d the cr edibility of his acc users throug h cross-e x amination. But their cre dibilit y was already erode d t o t h e point that it was insufficient, by itself, to support a delinquency adjudication. What more could Novak have hoped to achie ve? The far
g reater risk, as he explained, was that the acc users would come acr oss as more cre dible and believable in court. Also, Novak would have run the risk that, afte r being prepa red to testify by the State, the acc users would no longe r contra dict themselves or tell unbelievable stories. The State e x plained as muc h at the hea ring on Austin’s motion for a newtrial:
“S o , Attorney Novak was confr onted with a decision of allowing that in as chec kere d as it was or r equiring us to put on those witnesses. Your honor, Isubmit

O n e sus pec ts tha t Ric ky is not los ing too m uch sl eep over the con st it uti ona ll y de fe ct i ve 15

ass is ta nce of

cou nse l h e r ece ived f

rom Nov ak.

T he act tha t Au st in admitt ed t o was le tt ing Dil lon per for m or al se x on him. T his act was 1 6

cor rob ora te d by Dil lon ’s te st imony

.
-43-that, if we put on those witnesses t hat could h av e, t h at could have resulted in even more damning e vidence ag ainst Ricky M[.] and Austin M[.] and could have put us in a position to cure the inconsistenc ies, which we re a ppare nt in the videos.” ¶ 173 Novak’ s decision was clea rly wise from a strateg ic standpoint, and it also shows that he

was acting as a defe nse counsel and not as a GAL

. Ag ain, he allowed t h e S t at e t o prese nt testimony that was contra dictory and, in many instances, unbelievable on its fac e. This could only have been a

g ood thing a s far

as see king a

n acquittal wa s conce rned. I f he wer e rea lly just interested in finding out exact l y what happene d, beca use of a duty to society
, he obviously would have wanted to have the acc users testify in court so that he could probe all of t he inconsist encie s in their st ories and try to g et t o the bot tom of what re al l y happene d,

ev en if that meant that they came acr oss as cre dible and his clients wer e adjud i ca t ed delinquent. But that is not what happene d, beca use Novak was a defe nse attorney seeking an acquittal. ¶ 174 T h e s ec o n d part of Novak’ s strategy worke d when Austin rec eived a s en t en ce o f probation. Ag ain, the State promised to rec ommend a sentenc e of probation in exchang e for Novak allowing the State to present the a ccuse rs’ testimony by way of videotape. The trial judge explained that he was sentenc ing Austin to probation only beca use he felt bound to honor t he ag ree ment that Novak entere d into with the S tate. He felt bound beca use he had
not explained on the rec ord that he would not be bound by the ag ree ment. The clea r import of the trial court’s words is that he would have pref erred t o g ive Austin a more sever e sentenc e. So, both of Novak’ s strateg ic decisions for allowing the State to proce ed by way

1 7 of videotape came into play
, and both of Novak’ s strateg ies worke d out ex ac t l y as he had planned. ¶ 175 T o s u m up , t hen, when Novak was hired to repr esent Austin and Ricky
, they stoo d

acc used of committing m ultiple sex offe nses aga inst multipl e victims. Directly as a result of the strategic decisions Novak made as defense counsel
, Ricky was acquitted entirely
, and Austin was adjud i ca t ed d eli nquent onl y beca use he admitted to one of the acts that Dillon

acc used him of. Austin then rec eived a sentenc e of probation, when the trial judge clea rly believed that he shoul d rec eive a more severe sentenc e, aga in solely beca use of a strateg ic decision made by Novak. And this is what a majority of the I llinois Supreme Court considers
to be a complete denial of counsel in one’s defe nse. For some rea son, in considering whether Novak functioned as a defe nse attorney in thi s ca s e, the majority focuse s not at all on the strateg ic decisions that Novak made that worke d flawle ssly
, but only on a strategy that he did not pursue that had no c hance of succ eeding

.

By the ti m e Aust in was sen te nce d, a sex off end er evalua ti on had bee n complet ed and the 1 7

soc ia l worker who complet ed the evalua ti on det er m ine d tha t Aust in was a high ri sk to re off end and
t h at he ide nti fi ed st ron gly wit h m any of the cha ra ct er is ti cs of psychop at hy o r ant is oci al beh avior

. Base d on thi s evalua ti on, the pro bat ion off ic er who complet ed the pre sen te nce re por t re comm end ed tha t Aust in be r emanded t o t he Illi noi s De par tment o f Co rr ect ion s a nd o rde re d t o a re si den ti al sex off end er tr eat m ent fa ci li ty.

-44-¶ 176 I I I . The Ef fec t of Today ’s Dec ision ¶ 177 Perhaps rea liz ing the potentially enormous can of worms it has opened with its automatic

reve rsal rule, the majority takes p ains at the end of its opinion to limit the scope of its decision. The court throws in the phrase s “[b] ased on the fac ts of this case ” ( supra ¶ 101) and “under the specific fac ts of this case ” ( supra ¶ 111) when descr ibing its holding. This court, h o weve r, does not issue fac t-specif ic Rule 23 order s. We take questions of gen er al importance and issue binding, prec edential opinions for all courts in this state to f ollow. I n this reg ard, J ustice Scalia’s observation on the proper role of the Supreme Court vis-a-v is all lower courts seems equally applicable to the role of this cour t vis-a-v is the l ower courts of I llinois : “The Suprem e C ourt of the United States does not sit to announce ‘unique’ dispositi ons. I ts principal function is to establi sh prece dent —that is, to set forth principles of law that ever y court in Americ a must follow. As we said only this Term,

we expect both ourselves and lower courts to adher e to the ‘ rationale upon which the Court based the results of its ear lier decisions.’ Seminole Tribe of Fla. v. Florida
, 517 U.S. 44, 66-67 (1996) (empha sis added)

. That is the principal rea son we publish our opinions.” United States v. Virginia
, 518 U.S. 5 1 5
, 5 9 6 (1996) (Scalia, J
., dissenting)

. ¶ 178 And what are these “spec ific fac ts” to which the court re fe rs ? T h e record shows that Novak perf

ormed eff ectively as defe nse counsel, employ ing strateg ies leading direc tly to an acquittal for one client and a sentenc e of probation for the other, but the majority holds that the client who receive d probation i s entitled to an automatic reve rsal an d a new trial, with

no showing of prejudice
, simply beca use it found evidenc e in the rec ord that the attorney had

a best interests “mindset” or tried the case with the wrong “tone.” Surely my colleagues do
not mean to sug g est t h at they would deny the same relief to the next juvenile adjudicate d delinquent who can point to evidenc e in the rec ord showing t h at his attorney had a best interests mindset. And there is no question that, in any other simil ar case that comes befor e the courts, the attorney will have been less eff ective than Novak. You cannot g et much more ef fe cti ve than obtaining an acquittal for the client who did not confe ss and a sen t en ce o f probation for the one who did. The majori t y m u s t rea liz e that ever y rec ently adjudicate d juvenile will have his or her attorney scouring the rec ord for the words “best interests” so that he or she may also obtain the automatic reve rsal and new trial to which the law now entitles them. I s there some principle under which my colleagues believe that they could g rant Austin relief
, but then deny that same relief to ever y one else? I f they believe that this decision is sui generis
, then it is incumbent upon them to explain how, as the lower courts will have to beg in apply ing this dec ision.

¶ 179 I V. Corpus Delicti ¶ 180 Be fore concluding this dissent, I wish to briefly addre ss the arg ume n t o f Ju stices Fr eema

n and Kar meier that this court should rever se on corpus delicti g rounds. I will se t f orth three

rea sons why this court should not reve rse on that basis. Eac h of these three rea sons is, by itself, sufficie nt to defe at a corpus delicti argument, and, taken toge ther, they leave no room at all for a

reve rsal on that basis.

-45-¶ 181 First, Austin has not made a corpus delicti corr oboration argument, a fac t that neither of

the specia lly concur

ring justices acknow ledg es. Austin does ar g ue that the evidenc e was insufficient, but his argument is simply that the victims wer e not cre d i b l e an d that his

c o n f e s s io n w a s u

nreliable

. Austin also incorporates J ustice Appleton’ s a p p e ll a te c o u r t d is s e n t by ref ere nce, and J ustice Appleton did not arg ue corpus delicti either. See 403 I ll. App. 3d
at 687-88 (Appleton, J
., dissenting)

. Moreove r, it is entirely clea r that this was not a mere oversig ht but rather

a consc ious decision by

Austin not to raise this argument. How do we know? Two rea sons. First, the ar g ument appea rs in the rec ord and was thus a vailable to be raised on appea l. The attorney whom Austin’s pare nts hired to repla ce Novak at the hear ing

on the motion for a new trial made the argument that Austin’s confe ssion was not sufficie ntly

corr oborate d. The attorney never used the words “ corpus delicti ,” instead incorre ctly ref err ing to it as a “burde n shifting” argu m en t , but the corpus delicti argument is there in substance. Second, the State, in its appellee ’s brief befor e this co u rt , m ad e a preve ntative
corpus delicti argument. The State noted that def endant ha d not a

rg ued corpus delicti
, but, since the case involved a confe ssion, the State chose to explain why there was n o 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 orig inal brief.” So, even though the argument appea red in t h e re cord, and even though the State addre ssed 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 r ever se on that basis? ¶ 182 Ag ain, in Givens
, 237 I ll. 2d at 323-30, this court addre ssed the propriety of a re viewing
court proce eding in such a fashion. Givens clea rly held that, “ other than

for assessing subject matter jurisdiction
, ‘a reviewing court should not normally sear ch the r ecor d for una rg ued and unbriefed rea sons to reve rse a trial court’s judgme nt.’ ” (Emphase s added.) Id

. at 323 (quoting Saldana v. W

irtz Cartage Co.
, 74 I ll. 2d 379, 386 (1978))

. This c ourt noted that it follows the principle of “par ty prese ntation,” and explained that courts “ ‘do not, or should not, sally forth eac h day looking for wrong s to rig ht.’ ” Givens
, 237 I ll. 2d at 323-24 (quoting Gree nlaw v. United States
, 554 U.S. 237, 243-44 (2008)) ; see also People v. W hite
, 2011 I L 109689 ¶ 153 (a dmonishing the a ppellate c ourt that revie wing court justices should not be “fr ee rang ers riding about the leg al landsca pe looking for law to make”)

. This c ourt further noted that ra ising issues on beha lf of a party would “ ‘tra nsform this court’s role from that of jurist to that of advoca

te.’ ” Givens
, 237 I ll. 2d at 324 (quoting People v. Rodriguez
, 336 I ll. App. 3d 1, 14 (2002))

. Thus, this c ourt held that the appellate court in that case err ed in

reve rsing the defe ndant’s conviction on the basis of an argument that the defe ndant was not making

. Givens left open the possibili ty that, in cer tain limit ed case s, it may be appropr iate
to reve rse on a basis that the defendant was not arguing. H oweve r, that would only be in a

case involving an obvious err or controlled by clea r prec edent. Givens
, 237 I ll. 2d at 326-29. T h at is clea

rly not the case here
, as I will explain more fully below. Under no possible circ umstances is this a situation wher e there is an obvious err or co ntrolled by clea r prec edent. 1 8

One of the rea son s that we g ave in Giv ens for why we do not ra is e ar gum ent s sua spo nte 1 8

on beh al f o f p a r t i e s is tha t it dep ri ves the par ti es of an oppo rt uni ty to be hea rd and re qui re s

-46-¶ 183 The second rea son this court should not reve rse on corpus delicti g rounds is perha ps the
most obvious: t h er e i s simply no corpus delicti problem in this case

. J ustice Fr eema n correctly sets forth the black letter corpus deliciti law, so I will not repe at all o f t h o s e principles here

. As he corr ectly notes, Austin’s g uilt could not have stood solely on his naked confe ssion. Rather, there must have been corr oborating evidenc e tending to establish that the crime occur

red. The act that Austin confe ssed to was allowing Dillon to perf orm oral sex on him. This confe ssion was corr oborate d in the strong est way possible: Dillon testified that he perf ormed oral sex on Austin. This is te x tbook corpus delicti corr oboration. That is end of the ball g ame; ther e is nothing more to say

. ¶ 184 J ustice Fr eema n writes that, “convic ting a defe ndant solely on the basis of a conf ession direc tly contra dicts the corpus delicti require ment.” Supra ¶ 121 (F ree man, J
., concur ring 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 direc t quote fro m the trial court’s order adjudicating Austin delinquent:
“This is also, with respe ct to Aus tin, a case in which the responde nt minor’s admission has been proved bey ond a rea sonable doubt and, together with the State’s other ev idence , is sufficient to meet the State’ s burden.” (Emphasis adde d.) The t ri al j udg e did not find the corr oborating evidenc e sufficie nt, by itself, to establish Austin’s delinquency bey ond a rea sonable doubt, b u t t h e corr oborating evidenc e does not have to do so. As J ustice Fr eema n conce des, “ ‘the independe nt evidenc e need not establish bey ond a rea sonable doubt that an offe nse did occur .’ ” Supra ¶ 118 (F ree man, J
., concur ring in part and dissenting in part) (quoting People v. W i l l i n g h am , 89 I ll. 2d 352, 361 (1982))

. Thus, there is simpl y

no corpus delicti problem. ¶ 185 The final rea son that J ustices Fr eema n and Kar

meier’s co r

p u s d el i ct i ar g ument is incorre ct is that it would require this court to ignor e both the trial court’s cre dibilit y finding and the trial court’s interpre tation of its own cre dibilit y finding

. Be fore explaining why this is so, I must briefly

note that the law is not clea r in I llinois
, or elsewhe re, as to w hat extent witness cre dibilit y should come into play in deter mining whether a confe ssion is sufficie ntly

corr oborate d. For instance, J ustice Fr eema n cites an Ohio appellate court case that said that “compe tent and cre dible evidenc e” must support the defe ndant’s confe ssion. Supra ¶ 120 n.7 (F ree man, J
., concur

ring in part and dissenting in part) (citing State v. Puck ett , 2010-Ohio6597, ¶ 15, 947 N.E.2d 730 (Ct. App.)). Howeve r, another panel of the Ohio appellate court

more direc tly addre ssed the question of witness cre dibilit y the following y ear , albeit in an unpublished decision. That panel of the Ohio appellate court, in addre ssing the defe ndant’s
argument that her confe ssion was not sufficie ntly corr oborate d, specific ally held that witness

spe cul at ion as to what the ir ar gum ent s woul d have bee n. Giv ens , 237 I ll

. 2 d a t 3 2 4

. Alt hough, as not ed, the Sta te m ade a pre ventat ive cor pus del ic ti ar gum ent , the Sta te obvious ly woul d have no way of knowing tha t m embers of thi s cou rt wer e con te m pla ti ng add ing a wit nes s- cr edi bil it y component to the cor rob ora ti on r ule , so the Sta te did not wei gh in on that poi nt. I f t his cou rt wer e t o ad d su ch

a re qui re m ent , the ti m e to do so woul d be in a cas e in whic h it was pro per ly ra is ed by the def end ant and fu ll y brie fe d by bot h pa rt ie s.

-47-cre dibilit y g oes only to the weig ht of the eviden ce and is not rele vant for purposes of the

corpus delicti rule. State v. W right
, 2011-Ohio-5641, ¶ 10 (Ct. App.). Thus, the law in Ohio is far f rom settled. ¶ 186 Be tween them, J ustices Fr eema n and Kar meier cite three I llinois case s, but only one of them, People v. Hubbard
, 38 I ll. 2d 104 (1967), even touches on the issue. People v. Rivera
, 2011 I L App (2d) 091060, ¶ 41, is cited for the p ro p o sition that the State’s corr oborative evidenc e must “inspire belief in the defe ndant’s confe ssion.” Acc ording to J ustice Kar meier, the State’s independe nt evidenc e failed in this reg ard. Supra ¶ 126 (Ka rmeier
, J
., concur

ring in part and dissenting in part). But what could inspire more belief in Austin’s confe ssion than that the victim testified to the exac t same act to which Austin confe ssed? Certainly the fac t that the victim testified to the exact same act that Austin c onfesse d to doe s not g ive us less confide nce in Austin’s confe ssion. Simi larly
, J ustice Fr eema n cites People v. Furby
, 138 I ll. 2d 434, 451 (1990), for the proposition th at t h e i n depende nt evidenc e must be consistent with the confe ssion and tend to confirm or streng then it. That is a perf ect descr iption of what

we have here : Austin confe ssed to h av i n g Dillon perf orm oral sex on him, and Dillon testified to perf

orming oral sex on Austin. Dillon’s testi m o n y i s consistent with Austin’s confe ssion and both confirms and stre ng thens it. ¶ 187 That leave s only Hubbard
, a 45-y ear -old case that is so obviously a relic of another era that it should probably not be cited for any thing. I n that case , this court independe ntly evaluated the testimony of the complaining witnesses rele vant to the incident at hand and noti c e d c o n tr a d ic ti o n s a

n d u n e x plained g aps in their testimony
, and ultimately conclude d that their testimony was “so wea k as to defy belief.” Hubbard
, 38 I ll. 2d at 110. Thus, the court found that the confe ssion was not sufficie ntly corr oborate d. There are sever al problems with Hubbard

. First, it predates the United States Supreme Court’s decisions in In re W inship
, 397 U.S. 358 (1970), and Jack son v. Virginia
, 443 U.S. 307 ( 1979), and this cour t’s opinion in People v. Colli ns , 106 I ll. 2d 237 (1 9 8 5 ). Thus, the standard of revie w we applied was differen t. Among other things, Hubbard did not acknow ledg e a duty to view all of the evidenc e in t h e l i gh t m o s t favor able to the prosec ution, did not state that we may not substitut e our judgme nt for the trier of fac t on cre dibilit y matters, and applied an old rule that this court revie wed the evidenc e in rape case s differ ently than in other criminal case s. Thus, this court eng ag ed in its own weig hi n g o f t h e evidenc e and made its own cre dibilit y deter mination and si m p l y decla red that the t wo women who t estified to being rape d at t he hands of the defend an t we re u n worthy of belief. Thus, this court held that the defendant’s admission to rapingthe two women wa s not sufficiently corr oborate d. Hubbard
, 38 I ll. 2d at 109-11. I t is impos s i b l e to believe that Hubbard would be decided the same way today

. I ndeed, our standard of revie w would forbid it. Moreove r, it i s q u es t i onable whether Hubbard lasted even five y ear s. I n People v. Springs
, 51 I ll. 2d 418, 425-26 (1972), this court clar ified that its duty to car efully examine the rec ord in rape case s did not mean that the court could “enc roac h upon the function of the jury to weig h cre dibilit y and otherwise assess the evidenc e prese nted in the course of the trial.” See also People v. Ree se , 54 I ll. 2d 51, 57-58 (1973) ( same). ¶ 188 Assuming that Hubbard even survived Springs and Ree se , the most that it can be said to stand for is the propo s i tion that when the corr oborating evidenc e is “so weak as to defy

-48-belief” it amou n t s t o no corr oboration at all. That is clea rly not what the trial court found here

. J ustice Kar

meier states that the trial court “neve r found the testimony of the minors to be cre dible” ( supra ¶ 126 (Ka rmeier
, J
., concur

ring i n part and dissenting in part))
, and J ustice Fr eema n s tates that the trial court “found the testimony of the minors not to be

cre dible” ( supra ¶ 121 (F ree man, J
., concur ring in part and dissenting in part))

. Howeve r, the only witness that the trial court found completely lacking in cre dibilit y was Wil lie. The trial
court specific ally found J onathan slightly more cre dible than Wil lie and said with respe ct to Dillon only that his testimony was “suspec t.” And with respe ct to eac h, he specific ally listed those matters that he thought their testimony was suspect on. Then, the tria l court said that
t h e testimony of the minors was sufficie nt to convince him that something had p ro b ab l y happene d, but that it fell short of the rea sonable doubt standard. Obviously
, t h en , the trial
court did not find the victims completely lacking in cre dibilit y , let alone that their testimony

was “so wea

k as to defy belief.” Oth er wise, he would not have been convince d by their testimony that something pr obably

happene d. ¶ 189 This matter wa s specific ally broug ht to the t rial cour

t’s attention during the hea ring on Austin’s motion for new a trial, and the trial court explained tha t it did not find the victims completely lacking in cre dibilit y

. Def endant argued at that hear ing that Austin’s confe ssion

was not sufficie ntly corr oborate d beca use of the trial court’s cre dibilit y finding
, and the trial
court responde d that, “I also found the State introd u ced evidenc e sufficie nt to prove that something probably happene d but not bey ond a rea sonable doubt. That’s corr oborative isn’t it? ” To which Austin’s attorney replied, “Tha t’s somewhat corro b o ra tive, but as I said, I don’t believe it meets the standar d of proof bey ond a re asonable doubt.” 1 9 ¶ 190 Clearly
, then, the trial court did not find the victims completely lacking in cre dibilit y

. J ust

as we m ay not substitut e our judgme nt for that of the trial court on matters of witness

cre dibilit y , we should not substitut e our judgme nt for that of the trial co u rt on how to interpre t the court’s own cre dibilit y finding

. Even Austin’s attorney ag ree d that the evidenc e

was corr oborative, but argued t h at it fell below the rea sonable doubt standard. But, as we have alre ady established, the corr oborative evidenc e does not need to meet that standard. So, while the specia lly concur ring justices may believe that the victims wer e completely lacking in cre dibilit y , that is clea

rly not what t h e t ri al co u rt found, and we may not substitut e our judgme nt for the tria l court’s on this matter. ¶ 191 I n sum, there is simply no corpus delicti problem in this case, a nd Austin has not even contende d that there is. The specially concur ring justices provide no mo re o f a v alid basis
to reve rse Austin’s a djudication than does the ma jority

.

¶ 192 V. Conclusion ¶ 193 I ag ree entirely with my colleagues’ conclusion that Austin was entitled to the assistance of counsel in his defe nse. Unlike my colleag ues, howeve r, I believe that this is exactly what Austin rec eived. The rec ord shows bey ond all doubt that Novak was never appointed as GAL

Aust in’ s re pla cement at tor ney’s con ces si on tha t the con fe ssi on was cor rob ora te d m ay be 1 9

one re aso n why he c hos e t o f orgo r ai si ng that ar gum ent on a ppe al

.

-49-an d n ever attempted to fulfill that role. He fulfilled only one role—that of defe ns e

counsel—a

nd he did so quite well. Ther e is no support at all for the ma

jority ’s conc lusion that Novak “wa s not acting as defe nse counsel.” Supra ¶ 101. I expr ess no opinion on whether a per se conflict of interes t ex ists when an attorney functions as both defe nse counsel and GAL
, as that issue is not befor e the court. I note that the points I have raised in this diss ent stand entire ly unrebutted by

the majority

. ¶ 194 My colleagues’ desire to rea ch the issue as briefe d by Austin is cer tainly understanda

ble. Whether a defe nse attorney can act as both G AL and defe nse counse l is an important issue worthy of this court’s attention. Whether Novak proper ly perf ormed h is role as defe nse counsel in this par

ticular c ase is not a

n important issue that demands this c ourt’s attention. I t is cer tainly unfortunate that the appe llate cour t made this case about s omething that it is not. A ll of that said, this court must adjudicate the c ase tha t is before it, and we should not

overr eac h and issue an advisory opinion simply beca use we want to decide an issue. I t is not

even arguable that this case prese nts the question of whether an attorney may serve as both GAL and defe nse counsel, and this court should have reje cted Austin’s claim as an improper
reque st for this court t o issue an advisory opinion on a set of fac ts not befor e the court. Moreove r, the majority ’s criticisms of Novak are truly reg rettable g iven that he did absolutely nothi n g wr o n g and functioned as an entirely eff ective defe nse counsel for his clients. ¶ 195 Idissent.

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