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People v. McMillin9/1/2004
re, in the absence of defense counsel's decision to be "straightforward" and in the absence of his belief that the defendant's criminal past was "relevant" and "important" for the jurors to know, jurors would never have known that this was not the first time, not the second time, but the third time that the defendant faced drunk-driving charges. Jurors would not have known that the defendant was clearly capable of committing the crimes charged and had admittedly committed drunk driving two times before. In the absence of defense counsel's zeal to show jurors that when this defendant got caught committing a crime in the past, he had always owned up to it, jurors would never have known that the defendant went to prison for admittedly committing the same crime with which he was charged, in addition to battering someone in an aggravated way. Jurors would never have been told that the defendant repeatedly disobeyed court orders imposed for his criminality or that he had been convicted of escape, which was factually untrue.
While we readily agree with the State's assessment of what defense counsel's strategy was, we do not agree with the conclusion that the strategy was sound. "Sound trial strategy is made of sterner stuff." People v. Moore, 279 Ill.App.3d 152, 159, 215 Ill.Dec. 479, 663 N.E.2d 490, 496 (1996).
We think it decidedly unsound strategy to inform a jury that the accused is a perpetual outlaw who has engaged in a decade of criminal activity, which happens to include admitted law-breaking behavior identical to the charged conduct, in an effort to heighten the credibility of the defendant's current denials. There is nothing reasonable about such a strategy. Reasonably effective criminal defense lawyers would not pursue it. They would worry about the downside from such a strategy-that jurors would correctly conclude that the defendant was a no-account human being who possessed no respect for the law. Reasonably effective criminal defense attorneys would fear that jurors *347 would correctly conclude that the defendant harbored a penchant for driving drunk, that he could not care less about his license being revoked, that he had driven on a revoked license before and could easily do it again, that he was a man capable of committing violent crime, and that, because he had gone to prison for the same crime a short time ago and did not learn anything from it, his punishment upon conviction this time would be worse than three years of incarceration, a prospect that made lying about his current guilt worthwhile in order to avoid it.
In all likelihood, this is how jurors used the information defense counsel decided to give them. It is infinitely more likely that the jury reached these conclusions from evidence of the defendant's criminal past rather than the intended conclusion that the defendant possessed the integrity to plead guilty if he had committed the charges in question.
We find that defense counsel's performance was not objectively reasonable. The defendant did not receive reasonably effective assistance of counsel.
To succeed on a sixth amendment claim of ineffective assistance of counsel, the defendant must show that there is a reasonable probability that, but for counsel's **20 ***509 professional shortcomings, the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. A reasonable probability means a probability sufficient to undermine confidence in the outcome of the case. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.
Under this test for constitutionally ineffective assistance of counsel, we are constrained from providing a defendant relief solely upon the basis of his attorney's level of performance. The test measures the p
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