Illinois 1st District Appellate Court Adopts “Strickland-Type” Standard for Retained First Stage Post-conviction Counsel

After this defendant was found guilty of first degree murder in a jury trial, he fired his private attorney and hired a second one. This second lawyer represented the defendant at post-trial motions and sentencing and direct appeal. This second attorney was subsequently retained for post-conviction purposes. He wrote the first stage petition and represented the defendant at the second stage where the defendant’s petition was dismissed.

On appeal of this dismissal, the defendant argued on appeal that this lawyer operated under a conflict of interest by representing the defendant on the direct appeal as well as on post-conviction.

Appellate Court rejected the suggestion that the attorney’s own ineffective assistance becomes a per se, or disabling conflict. They also found that the attorney did not suffer from an actual conflict of interest either.

In evaluating this lawyer’s post-conviction performance, the appellate court held that privately retained counsel should be evaluated under a Strickland type standard where prejudice is not presumed, but must be shown.

The case is People v. Brandon Zareski.

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