Whether the Illinois courts' mechanical, outcome-based approach to the Strickland standard routinely denies indigent defendants their Sixth Amendment right to counsel

QUESTION PRESENTED FOR REVIEW The Illinois courts’ mechanical, outcome-based approach to the Strickland standard routinely denies indigent defendants their Sixth Amendment right to counsel. In Illinois, this violation primarily occurs because Illinois’ approach routinely fails to adequately address the fundamental fairness of the trial proceedings. This Court has long held that when adjudicating a claim of ineffective assistance of counsel, “the ultimate focus of inquiry must be on the fundamental fairness of the proceeding” and the reliability of the adversarial process. Strickland v. Washington, 466 U.S. 668, 696 ' (1984). Yet even though indigent defendants are stuck with the record made by the attorney who they assert is deficient, Illinois courts too often require affirmative proof of a different outcome rather than merely showing a fundamentally unfair and | unreliable proceeding.! This is particularly problematic because Illinois’ post-conviction statute does not provide even a statutory right to counsel at the first stage of those proceedings. 725 . ' Without analyzing or acknowledging the fairness or reliability standards, the Illinois Supreme Court seized on isolated language to assert: “Strickland requires a defendant to ‘affirmatively prove’ that prejudice resulted from counsel's errors.” People v. Johnson, 2021 IL 126291, J 55, quoting Strickland, 466 U.S. at 693 (finding no prejudice despite counsel’s professionally unreasonable failure to have available swabs tested for DNA because defendant could not show a different outcome without the _results of the unperformed testing). See People v. Cherry, 2016 IL 118728, | { 32-33; See also, People v. McFadden, 2021 IL App (5th) 170139-U, J] 108 (finding no prejudice despite finding multiple errors by counsel because the prosecution’scase “was supported” by defendant’s statement, even though it also acknowledged that the police had failed to honor the juvenile defendant’s invocation of his right to remain silent and that the record was not clear that the juvenile had initiated subsequent conversation ‘with police after also invoking his right to counsel). i ILCS 5/122-2 et seq; See People v. Cotto, 2016 IL 119006, § 27. This problem is further . exacerbated because Illinois’ indigent defense system lacks “any oversight structure” to ensure that each county has “a sufficient number of attorneys with the necessary time, training, and resources to provide effective assistance of counsel at every critical stage of a criminal case for each and every indigent defendant.”” The substantial gap between our Constitution’s requirements and Illinois’ appellate review of ineffective assistance of counsel claims is particularly notable in the direct appeal of 17-year-old Craig Miller’s first degree murder conviction. People v. Miller, 2020 IL App (5th) 170404-U, 9] 51-55. The only question at trial was whether Craig’s conduct could be mitigated to second-degree murder. In Illinois, that requires proof of all of the elements of first degree murder. 720 ILCS 5/9-2(a). Craig’s trial counsel made numerous mistakes of law that impacted the litigation of Craig’s confession and resulted in counsel arguing a theory to the jury that was unsupported by the law or the jury instructions. Counsel erroneously attempted to rely on prosecution witnesses for proof of essential facts yet was unaware that those witnesses would not be present or available at trial. Counsel also attempted to rely on Craig’s age and background to mitigate his conduct to second degree murder, yet counsel did not offer available evidence to support that argument or litigate the matter before trial. Despite these egregious errors, the appellate court summarily disposed of Craig’s appeal without addressing the substance of trial counsel’s numerous errors based on ® Sixth Amendment Center, “The Right to Counsel in Illinois: Evaluation of Adult Criminal Trial-Level Indigent Defense Services,” June 8, 2021, at 153; available at