Legal Memorandum: Prosecutorial Misconduct Prior to Conviction

Issue: What relief is available to a criminal defendant who pleaded guilty but later learns that the prosecutor in the case developed a personal relationship with the victim/witness prior to the guilty plea and subsequent conviction in Illinois?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure
Keywords: Prosecutorial misconduct; Prosecuting attorney and a witness; Personal relationship
Jurisdiction: Illinois
Cited Cases: 272 N.E.2d 669; 127 A.D.2d 686; 405 U.S. 150; 690 N.E.2d 999; 738 N.E.2d 628; 55 F.3d 239; 696 N.E.2d 1229; 629 N.E.2d 1162; 373 U.S. 83; 430 N.E.2d 994
Cited Statutes: None
Date: 05/01/2011

While no Illinois case has been located in which a court vacated a guilty plea on post conviction relief because of a personal relationship between the prosecuting attorney and a witness in the case (perhaps because guilty pleas more commonly occur before witness testimony is presented), Illinois courts have clearly recognized in a variety of settings that personal relationships can and do taint criminal proceedings such that relief may be available.  These decisions create a spectrum of improprieties involving a variety of relationships that range from per se conflicts to less severe circumstances.  Depending on the nature of the misconduct, the defendant’s burden of proof varies.

On one end of the spectrum, the Supreme Court of Illinois has unsurprisingly recognized that where a judge in a criminal case agrees to take a bribe, even if it is returned on a change of heart, such misconduct is a per se violation of the defendant’s due process rights.  “A fair trial in a fair tribunal is a basic requirement of due process.  Fairness at trial requires not only the absence of actual bias but also the absence of the probability of bias.”  People v. Hawkins, 181 Ill. 2d 41, 50, 690 N.E.2d 999, 1003 (1998) (internal citations omitted).  Thus, where the judge “possessed and actively cultivated a personal, pecuniary interest in the outcome of defendant’s case,” the defendant’s conviction should be vacated and he is entitled to a new trial.  Id. at 51, 690 N.E.2d at 1003.

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