People v. Myles

Mr. PRESIDING JUSTICE DIERINGER delivered the opinion of the court: This is an appeal from the circuit court of Cook County. The defendant, Patricia Myles, was convicted of murder following a bench trial. The trial judge sentenced the defendant to 14 years to 14 years and one day in the Illinois State Penitentiary. The sole issue presented for review is whether or not the defendant was denied her constitutional right to be defended by counsel of her own choice. The facts of the case are the defendant was charged in a two-count indictment with the murder of one Edward Johnson. She was arraigned before the Honorable Joseph A. Power. At the direction of Judge Power, Dennis M. Kleper entered the appearance of attorney Stephen W. Zucker, whom the defendant had retained to defend her. Mr. Kleper was a young associate of Mr. Zucker. Mr. Kleper had been admitted to the bar only three months previously. On the appearance Mr. Kleper added his own name, according to Judge Power’s instructions, as he was representing the defendant on that particular day. It was never contemplated by the defendant, Mr. Kleper, or by Judge Power, as is obvious in the record, that an attorney of three months would represent someone charged with murder. On January 28, 1975, the defendant and Mr. Kleper appeared before Judge Louis Wexler. Judge Wexler told Mr. Kleper the case was going to be tried “right now.” Mr. Kleper told the trial judge he was unqualified, and he had never tried a felony case. Judge Wexler told Mr. Kleper they were going to pick a jury beginning immediately. Mr. Kleper protested he had never even seen a jury picked before and had no idea of how to pick one. Mr. Kleper asked to have the case put over until 2 p.m., in order for him to be able to contact Mr. Zucker. Judge Wexler refused. The clerk of the court then told Judge Wexler he had received a call from Mr. Zucker, and Mr. Zucker had told him the previous day he would be late arriving at court due to a conflicting court appearance in the suburbs. Judge Wexler indicated he did not consider this to be sufficient notice. The defense then requested a pretrial conference. After the conference was held, Mr. Kleper requested a bench trial, the defendant executed a jury waiver, for obviously she had no other choice because Mr. Kleper could not pick a jury, Mr. Kleper again requested a short recess in order to contact Mr. Zucker and Judge Wexler denied the request. Mr. Kleper again protested he was completely unqualified to undertake the defense of a client charged with murder. Judge Wexler ignored the protestations of counsel and ordered him to make his opening statement. A trial then commenced. The defendant was found guilty of murder and was given a sentence of 14 years to 14 years and one day in the Illinois State Penitentiary. At no time did the court ask the defendant if she wanted Mr. Kleper to proceed on her behalf. It is clear from the record here the defendant was denied her constitutional right to have counsel of her own choosing represent her. (Ill. Const. 1970, art. 1, §8; Ill. Rev. Stat. 1973, ch. 38, par. 113 — 3; People v. Payne (1970), 46 Ill. 2d 585; People v. Green (1969), 42 Ill. 2d 555.) In addition, counsel for the defendant repeatedly protested to the court the fact he was totally unqualified to represent the defendant. The total of counsel’s experience was one felony trial, which he had seen as a spectator. Counsel had never tried a felony case or even seen a jury selection. It is also clear from the record counsel took a bench trial because he did not even know how to pick a jury. As this court said in People v. Morris (1975), 30 Ill. App. 3d 1075, 1078-79: “While the unhindered disposition of criminal trials is a worthy end, and we appreciate the trial court’s concern and dilemma, we do not believe that such expedience can be premised upon the denial of one of the defendant’s most basic rights.” In the instant case we think it was an abuse of discretion on the part of the trial judge, not to have allowed the defendant to be represented by Mr. Zucker and to have forced an admittedly inexperienced, newly admitted attorney, to trial for the most serious of all the crimes in the Criminal Code. Accordingly, for the reasons contained herein, the judgment of the circuit court of Cook County is reversed and the cause is remanded for a new trial. Reversed and remanded. ROMITI, J., concurs.