author: CHIEF JUSTICE RYAN JUSTICE MORAN,

text:
    (No. 56119.

      In re REED HARRIS, Attorney, Respondent.

      Opinion filed December 17, 1982.

      SIMON, J., took no part.
    MORAN and UNDERWOOD, JJ., dissenting.
    Jerome Larkin, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Friedman & Koven, of Chicago (Phil C. Neal and Herbert L. Zarov, of counsel), for respondent.
   CHIEF JUSTICE RYAN

delivered the opinion of the court:

This disciplinary proceeding arises out of the fraudulent procurement of a barber’s license issued to Theodore Kossof, a licensed beautician. At the time of the incident, 1971-72, Kossof was unable to legally cut men’s hair because he did not possess a barber’s license and did not meet the licensing requirements. Kossof obtained the barber’s license in exchange for a cash payment to a public official with the assistance of the respondent in this action, H. Reed Harris, and another attorney, George Skontos, who in 1977 pleaded guilty to one count of mail fraud in connection with the procurement of the barber’s license for Kossof. Skontos was disbarred on consent. (73 Ill. 2d R. 762.) Respondent was offered immunity in exchange for his testimony to a Federal grand jury, which led to Skontos’ conviction.

On August 26, 1980, the Administrator of the Attorney Registration and Disciplinary Commission filed a complaint against respondent, charging him with conduct which tends to defeat the administration of justice and bring the courts and legal profession into disrepute, in violation of Rules 1—102(a)(3) and 1—102(a)(4) of the Code of Professional Responsibility (85 Ill. 2d Rules 1—102(a)(3), 1—102(a)(4)). A panel of the Hearing Board found the respondent to be guilty of misconduct and saw “no alternative but to recommend disbarment” because “[t]here is scarcely any conduct more likely to undermine public confidence in the administration of justice than the bribery of public officials by attorneys.” Respondent filed exceptions to the report and recommendation of the Hearing Board. The Review Board unanimously approved the findings of the Hearing Board, finding them to be supported by clear and convincing evidence. A majority of the Review Board concurred in the recommendation of disbarment, with two members recommending a one-year suspension. Respondent then filed exceptions before this court.

Respondent now raises three issues: (1) whether the complaint provided adequate notice of the misconduct of which he was found guilty; (2) whether the finding of guilt was supported by clear and convincing evidence; and (3) whether the sanction of disbarment is warranted by the misconduct.

In order to lay a background for a consideration of the issues respondent raises, it is necessary to review the facts in some detail. Respondent was licensed to practice law in Illinois on November 21, 1960. He first became acquainted with George Skontos in 1962; however, the events upon which this disciplinary proceeding is based did not occur until 1971-72. This sequence of events began in 1971 when Theodore Kossof, a beautician who cut respondent’s hair, informed respondent that he could not legally cut men’s hair without a barber’s license. Kossof, who could not meet the licensing requirements, requested respondent’s assistance in obtaining the right to legally cut men’s hair. Respondent and Kossof first considered a mandamus action, but Kossof later rejected litigation as too expensive and too slow.

In 1972 respondent consulted with George Skontos, also an attorney, on Kossof’s behalf. At that time, Skontos was, and had been since 1969, the Chief Technical Advisor to the Illinois Department of Registration and Education, the agency responsible for the issuance of barber’s and beautician’s licenses. At the disciplinary proceeding, respondent claimed not to have been aware of Skontos’ position, although he admitted knowing that Skontos was a State employee.

Skontos informed respondent that a barber’s license could be secured for Kossof by means of a partially completed application form, accompanied by a payment in cash, the amount of which is in dispute. Respondent admits to the cash payment and claims the amount was $1,500; Skontos maintains the amount was $1,000, with an additional $200 in cash for himself for “political obligations.” Respondent also charged Kossof another $1,000 as his fee for his assistance in the procurement of the license and the performance of other unrelated legal services.

Also in dispute is the procedure by which Kossof was to receive the sought-after license. Respondent testified that he thought the license was to be acquired by legitimate means, i.e., by reciprocity, although Kossof had no barbering experience. Kossof testified, however, that when he asked respondent who else was to be involved in the procurement of his license, respondent replied: “You shouldn’t know.” Skontos testified that he informed respondent that the license would be issued after a cash payment, “an honorarium,” to Robert Cook, the chairman of the Barbers’ Committee. The disciplinary proceeding transcript reveals that Robert Cook later received criminal sanctions for his role in the issuance of barber’s licenses to individuals who did not meet the licensing requirements.

It is undisputed that an affidavit was at some point attached to Kossof s barber’s license application indicating that he possessed barbering experience in Mexico. To date, no one has admitted to authoring the fraudulent affidavit, however. Shortly thereafter, these suspicious circumstances came to the attention of Dominick Chirchirillo, an officer of the Master Barbers’ and Beauty Culturists’ Association. As a result of Chirchirillo’s inquiry, on the advice of respondent and Skontos, the fraudulently issued license was returned. Kossof later requested, but did not receive, a refund of his cash payment. Several years later these events and other similar occurrences became the object of governmental investigations. The outcome of those investigations has been noted earlier.

With respect to the first issue, respondent argues that he was denied due process because the conduct charged in the complaint was “different from” the conduct of which respondent was found guilty. Specifically, respondent argues that “[t]he substance of the actual charge against Respondent was that he bribed Skontos,” whereas “[t]he offense of which Respondent was found guilty by the Board was that Respondent conspired with Skontos to bribe some other public official.” To this argument the Administrator replies that “[t]he instant complaint afforded notice that Respondent was being charged as a participant in a specific act of bribery with respect to this transmittal of cash from Kossof to Skontos.”

At the outset we note that this court has the inherent power to discipline attorneys who have been admitted to practice before it and that the disciplining of attorneys is in the nature of an original proceeding in this court. The Attorney Registration and Disciplinary Commission and its various officers, as well as the Inquiry Board, the hearing panel and the Review Board, serve this court in administering the disciplinary functions that have been delegated to them. (In re Mitan (1979), 75 Ill. 2d 118, 123-24, cert. denied (1979), 444 U.S. 916, 62 L.Ed. 2d 171, 100 S. Ct. 231.) This is different from this court’s function in appellate review. The findings of fact of the hearing panel and the Review Board are entitled to virtually the same weight as the findings of any trier of fact, but their recommendations are advisory only. In re Mitan (1979), 75 Ill. 2d 118, 124, cert. denied (1979), 444 U.S. 916, 62 L. Ed. 2d 171, 100 S. Ct. 231; In re Hallett (1974), 58 Ill. 2d 239, 250.

Secondly, although both the supreme court rules and the rules of the Attorney Registration and Disciplinary Commission require that the complaint “reasonably inform” the respondent of the misconduct of which he is charged, this is clearly different from the standard in a criminal case. (73 Ill. 2d R. 753(b); Dis. Com. R. 4.1.) Attorney disciplinary proceedings are not criminal in nature. (In re March (1978), 71 Ill. 2d 382, 395; In re Andros (1976), 64 Ill. 2d 419, 423.) The purpose of a disciplinary proceeding is to safeguard the public, to maintain the integrity of the profession, and to protect the administration of justice from reproach. (In re Saladino (1978), 71 Ill. 2d 263, 275; In re Lacob (1972), 50 Ill. 2d 277, 279.) While an attorney may be disciplined only for the conduct with which he is charged, a disciplinary proceeding is not to be equated with a criminal proceeding, nor is the respondent attorney entitled to the same specificity as to the offense charged, or to the full panoply of rights afforded a criminal defendant. In re Stillo (1977), 68 Ill. 2d 49, 55; In re Damisch (1967), 38 Ill. 2d 195, 206; In re Daley (7th Cir. 1977), 549 F.2d 469, cert. denied (1977), 434 U.S. 829, 54 L. Ed. 2d 89, 98 S. Ct. 110; People v. Harfmann (Colo. 1981), 638 P.2d 745, 747.

In the instant case, the complaint filed by the Administrator follows the usual practice of amplifying the general charge that the respondent has been guilty of “conduct which tends to defeat the administration of justice and bring the courts and legal profession into disrepute” with more specific factual allegations found, in the instant case, in 16 additional paragraphs. The particular paragraph respondent complains of is No. 14, which reads as follows:

“At the time Respondent delivered the cash and application to Skontos, Respondent was aware that Skontos was an employee of the Department of Registration and Education and that the money was a bribe to a public official to secure a license for Kossof through fraudulent means.” (Emphasis added.)

Respondent argues that, as stated, the above factual allegation is properly understood as charging that respondent bribed Skontos. However, although it may be possible to read paragraph 14 as conveying the meaning which respondent urges, it is also equally possible to read that paragraph as charging respondent with participating in bribing a public official through Skontos.

The conclusion of the hearing panel which respondent objects to is stated as follows:

“Respondent knowingly conspired with Mr. Skontos to bribe a public official to cause the issuance by the Illinois Department of Registration and Education of an Illinois barber’s license for Mr. Theodore Kossof when Respondent knew that under the law, Mr. Kossof was not entitled to such a license.”

Respondent argues that the Board’s conclusion that “Respondent knowingly conspired with Skontos to bribe a public official” does not match the charge found in the complaint, discussed earlier, and that this “undisclosed shift in theory in this case plainly put Respondent at a disadvantage.” However, respondent confuses the instant attorney disciplinary proceeding with a criminal trial. Respondent was neither charged with nor found guilty of the crime of conspiracy. He was charged with and found guilty of participating in the procurement of an unlawfully issued barber’s license by means of a bribe to a public official. Despite respondent’s vigorous protestations to the contrary, a thorough reading of the hearing transcript reveals no evidence of surprise on respondent’s part.

Furthermore, the case respondent cites to support his argument that he was denied due process is readily distinguishable from the instant case. (In re Ruffalo (1968), 390 U.S. 544, 20 L. Ed. 2d 117, 88 S. Ct. 1222.) In Ruffalo, the respondent was charged with soliciting FELA plaintiffs as clients through an agent, Michael Orlando, who was also a night-shift car inspector for the B&O Railroad Company. At the hearing respondent admitted that he employed Orlando but not for the purpose of soliciting. Rather, Orlando investigated cases for respondent. Some of the cases Orlando investigated involved his own employer, the railroad. The complaint was amended during the hearing to charge the respondent with misconduct based on his and Orlando’s testimony.

The Supreme Court, in Ruffalo, found that respondent had “no notice that his employment of Orlando would be considered a disbarment offense until after both he and Orlando had testified at length on all the material facts pertaining to this phase of the case.” (In re Ruffalo (1968), 390 U.S. 544, 550-51, 20 L. Ed. 2d 117, 122, 88 S. Ct. 1222, 1226.) The court concluded that it was a denial of due process to amend the charges on the basis of the testimony of the accused after the proceedings were underway. In re Ruffalo (1968), 390 U.S. 544, 551, 20 L. Ed. 2d 117, 122, 88 S. Ct. 1222, 1226.

The facts of the instant case clearly differ from those in Ruffalo. Respondent was charged and found guilty of misconduct which consisted of procuring an unlawfully issued barber’s license by means of a bribe to a public official. Unlike Ruffalo, there were no facts adduced at the hearing which caused the Administrator to amend the complaint. Respondent Harris, unlike respondent Ruffalo, did not walk into “a trap” for the unwary on the basis of his testimony at the hearing. A review of the pleadings and hearing transcript convinces us that respondent was “reasonably informed” at all stages of the proceedings of the misconduct with which he was charged.

Respondent next argues that he was not found guilty of misconduct by clear and convincing evidence. Essentially, respondent bases his argument on the fact that he never directly admitted to the misconduct. For example, respondent testified that he knew Skontos was a State employee but that he did not know Skontos worked for the Department of Registration and Education. Respondent admits transferring $1,500 in cash and a partially completed barber’s license application to Skontos to procure a barber’s license for Kossof but maintains that he assumed it was a legitimate transaction, even though no receipt changed hands and even though respondent knew Kossof had no barbering experience. Respondent’s testimony was, in several crucial instances, contradicted or seriously undermined by the testimony of other witnesses at the hearing.

It is well established that the hearing panel which hears and observes the witnesses is in the best position to weigh conflicting testimony and to make determinations regarding the credibility of witnesses. (In re Howard (1977), 69 Ill. 2d 343, 351; In re Smith (1976), 63 Ill. 2d 250, 255; In re Bossov (1975), 60 Ill. 2d 439, 441, cert. denied (1975), 423 U.S. 928, 46 L. Ed. 2d 256, 96 S. Ct. 275.) In the instant case, one of the conclusions reached by the hearing panel was that “Respondent was not credible during the hearing.” Although an accused in a disbarment proceeding is presumed to be innocent until the contrary is proved, there is no requirement that the Commission or the court be either naive or impractical in appraising the attorney’s conduct. (In re Agin (1970), 45 Ill. 2d 126, 130.) Furthermore, although an attorney can be tried only for the conduct charged against him, the failure to be candid and the giving of false testimony further demonstrates his unfitness to pursue the practice of law. (In re Stillo (1977), 68 Ill. 2d 49, 55; In re Eaton (1958), 14 Ill. 2d 338, 343.) In the instant case a careful review of the record convinces us that the findings of the hearing panel and the Review Board are supported by clear and convincing evidence.

The third issue raised by respondent is whether the sanction of disbarment is an excessive penalty for the misconduct involved. Upon consideration of all relevant factors, we find that in this case it is.

At the outset we note that the decision of what sanction is appropriate in a disciplinary matter rests with this court. (In re Chernoff (1982), 91 Ill. 2d 316, 324; In re Hopper (1981), 85 Ill. 2d 318, 323.) We note also that determining that the conduct which occurred requires discipline is often considerably less difficult than determining the appropriate nature and extent of the discipline. (In re Grant (1982), 89 Ill. 2d 247, 254.) In the instant case, the hearing panel recommended disbarment and a majority of the Review Board concurred. However, two members of the Review Board disagreed, recommending instead suspension for a period of one year.

With respect to the discipline to be imposed, each case must be judged individually based on the specific circumstances and conduct involved; however, this court is keenly aware of the necessity for consistency in the imposition of discipline in similar cases. In re Porcelli (1979), 77 Ill. 2d 473, 478-79; In re Howard (1977), 69 Ill. 2d 343, 354.

In the instant case, the misconduct which occurred was a single instance. Moreover, it occurred approximately 10 years ago, and there is no other evidence, or suggestion, of any other professional or personal misconduct by respondent during his 22 years as a member of the Illinois bar. Finally, he did not stand to gain personally or directly profit from his participation in the procurement of the barber’s license for Kossof, other than the fee he charged for his services, part of which remains uncollected.

Although not identical to the instant case, this court’s determinations as to the appropriate sanction in Howard, In re Kien (1977), 69 Ill. 2d 355, and Porcelli provide some guidance. In In re Howard (1977), 69 Ill. 2d 343, an attorney who made multiple payments to a police officer to secure his “truthful” testimony received a two-year suspension. Similarly, in In re Kien (1977), 69 Ill. 2d 355, an attorney who made a single payment to a police officer to secure his allegedly truthful testimony received an 18-month suspension because his “ethical aberration” was “less flagrant” than that in Howard. Finally, in In re Porcelli (1979), 77 Ill. 2d 473, the respondent was suspended for a period of one year for paying a police officer $300 to prepare an “accurate” alcohol-influence report on his client. Additionally, we recognize that the punishment of disbarment of an attorney means, for all practical purposes, the destruction of his professional life. In re Donaghy (1948), 402 Ill. 120, 134.

Thus, taking all of the above factors into consideration, we determine that disbarment is too extreme a sanction to be imposed in the instant case and instead impose upon respondent a three-year suspension.

Accordingly, it is hereby ordered that respondent be suspended for a period of three years.

Respondmt suspmded.

JUSTICE SIMON took no part in the consideration or decision of this case.

JUSTICE MORAN,

dissenting:

I find this court’s decision in In re Rosenthal (1978), 73 Ill. 2d 46, cert. denied (1979), 440 U.S. 961, 59 L. Ed. 2d 775, 99 S. Ct. 1505, not cited by the majority, to clearly warrant the disbarment of respondent. In Rosenthal, respondents bribed a public official in order to obtain a zoning change sought by their client. This court rejected a number of factors offered by respondents in mitigation and ordered that they be disbarred. In the instant case, respondent procured for his client a barber’s license by means of bribing a public official. The majority accepted the mitigating circumstances urged by respondent and ordered him suspended for three years. I fail to see any justification for the disparity in sanctions. Further, as this court stated in Rosenthal:

“Corruption within government could not, in most instances, thrive but for those few attorneys, who, like respondents, are willing to tolerate such illegal activity if it will benefit their client. The practice of law is a privilege and demands a greater acceptance of responsibility and adherence to ethical standards than respondents have demonstrated. Their conduct, in facilitating and participating in the paying of money to [a public official], was clearly a breach of required professional conduct. Their activities discredited the integrity of the bar and impeded the administration of justice.” 73 Ill. 2d 46, 56.

For the above reasons, I cannot agree with the sanction imposed herein.

JUSTICE UNDERWOOD joins in this dissent.


source: Caselaw Access Project

author: JUSTICE SIMON JUSTICE GOLDENHERSH,

license: Public Domain

text:
    (No. 55816.
    CHARLES F. MOEHLE, Adm’r et al., Appellants, v. CHRYSLER MOTORS CORPORATION, Appellee.

      Opinion filed December 17, 1982.

      GOLDENHERSH, WARD, and MORAN, JJ., dissenting.
    Edward J. Egan, of Edward J. Egan, Ltd., and Robert J. Weber, of Robert J. Weber, Ltd., both of Chicago, for appellants.
    Cassiday, Schade & Gloor, of Chicago (William J. Furey, Bradford D. Roth, Michael J. Gallagher, and Timothy J. Ashe, of counsel), for appellee.
   JUSTICE SIMON

delivered the opinion of the court:

This is a strict product liability action in which damages are sought for injuries suffered by Noma L. Meister and Margaret M. Moehle in an accident involving an automobile manufactured by the defendant, Chrysler Motors Corporation. Charles F. Moehle and Mrs. Meister brought the action in the circuit court of Cook County, Mr. Moehle bringing it in his capacity as administrator of his deceased wife’s estate.

The accident occurred when Mr. Moehle was driving his Chrysler New Yorker automobile on a four-lane highway at 40 to 50 miles per hour and struck another automobile which had suddenly swerved and entered his lane while crossing the highway. Mrs. Moehle and Mrs. Meister were sitting in the rear seat with their seat belts fastened. As a result of this accident, both of them were seriously injured, especially in the abdominal area. Mrs. Moehle died from these injuries, and Mrs. Meister was hospitalized for many weeks.

The evidence presented at trial is set forth fully in the appellate court’s opinion (100 Ill. App. 3d 353, 35458), and therefore we will limit our discussion here to a brief exposition of the plaintiffs’ theory of strict liability. The plaintiffs alleged that Chrysler’s rear-seat-anchoring system was dangerously defective and that this defect caused the severe abdominal injuries to the passengers in the rear seat of the Moehle automobile. The anchoring system in question consisted of two Z-shaped wires located underneath the left and right side of the seat. One end of each wire was attached to the underside of the seat, while the other end was attached to a floor-mounted bracket. This bracket had two hooks that wrapped around the Z-shaped wire, thereby restraining the seat’s movement. Plaintiffs argued that as a result of the collision the rear seat shifted sideways from the right to the left. This movement, plaintiffs contended, caused the Z-shaped anchoring wire to become unfastened from the hooks on the floor-mounted bracket. Once the anchoring wire was disengaged, the rear seat could move forward freely. Plaintiffs’ theory is that the rear seat dropped downward as a result of this movement. The combination of the forward and downward seat movement made the passengers slide under their seat belts and caused the belts to impact them in the soft abdominal region rather than in the harder pelvic region where the impact might have resulted in less severe injuries.

Chrysler responded that the Z-shaped anchoring wire did not disengage; that even if it did disengage the rear seat would be unable to move forward; and that even if the -wire did disengage and the seat moved forward, the anchoring system was not unreasonably dangerous. Chrysler also offered evidence that the injuries were caused not by movement of the rear seat but by normal body responses in a high-speed collision. The jury rendered a verdict in Chrysler’s favor. The circuit court entered a judgment consistent with the verdict, and the appellate court affirmed. (100 Ill. App. 3d 353.) In their appeal to this court, the plaintiffs object to the admission of Federal Motor Vehicle Safety Standard No. 207, and also contend that the jury’s verdict was against the manifest weight of the evidence.

Plaintiffs argue that the trial court erred in admitting evidence that Chrysler’s rear-seat-anchoring system complied with the Federal safety standard. This standard required that seat-anchoring systems be able to withstand longitudinal forces of 20 times the weight of the seat. An expert witness testified on behalf of Chrysler that the anchoring system actually exceeded the Federal standard, having been tested under crash conditions to 24 times the weight of the seat.

Chrysler argues that the plaintiffs did not properly preserve their objection to the admission of the evidence concerning Chrysler’s compliance with the Federal safety standard, and that the issue, therefore, is not before this court for review. Issues raised for the first time on appeal may not normally be considered by the appellate court. (Snow v. Dixon (1977), 66 Ill. 2d 443, 453, cert. denied (1977), 434 U.S. 939, 54 L. Ed. 2d 298, 98 S. Ct. 429; People ex rel. Wilcox v. Equity Funding Life Insurance Co. (1975), 61 Ill. 2d 303, 313.) In this case, however, the plaintiffs argue that they objected to the admission of the safety-standard evidence at an in camera conference and that this objection properly preserved the issue for appeal. Because we believe that the Federal safety standard was properly admitted, we need not decide whether the plaintiffs’ in camera objection was sufficient to preserve the issue for appeal.

In Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 436-40, this court held that evidence of a product’s compliance with governmental safety standards is relevant and admissible in a product liability case on the issues of whether the product is defective and whether a defect in the product is unreasonably dangerous. Plaintiffs concede that Rucker required the trial court to admit the safety-standard evidence in this case, but they urge us to abandon or modify Rucker.

Absent compelling reasons for so doing, we are reluctant in a civil case to abandon or modify an earlier decision of this court so soon after its adoption. The People and the bar of this State are entitled to rely upon our decisions with assurance that they will not be lightly overruled. (Graham v. General U.S. Grant Post No. 2665, V.F.W. (1969), 43 Ill. 2d 1, 8; Chicago Title & Trust Co. v. Shellaberger (1948), 399 Ill. 320, 343.) Other cases have been tried or disposed of on appeal in reliance on Rucker, and we should not announce a rule contrary to the results reached in those cases without good cause. (E.g., Hubbard v. McDonough Power Equipment, Inc. (1980), 83 Ill. App. 3d 272, 274; Turney v. Ford Motor Co. (1981), 94 Ill. App. 3d 678, 685.) Of course, we must modify our rules concerning the admissibility of evidence when we determine through experience that they undermine the truth-seeking process or prejudice other important public interests. However, we have no indication that the rule established in Rucker has had any of these effects.

Plaintiffs argue that a jury may tend to overemphasize evidence of a manufacturer’s compliance with governmental safety standards and that in some cases antiquated or grossly minimal safety standards may tend to confuse or mislead the jury concerning the availability of safety technology. We do not find this argument persuasive. With careful instructions to the jury by the trial judge and with effective argument by plaintiffs counsel we believe that the jury can properly evaluate the importance of the safety-standard evidence and then weigh it with all the other evidence in the record.

The decision in Rucker expressly announced that safety-standard evidence is not conclusive on the issues for which it may be presented. “The finder of fact may conclude that a product is in an unreasonably dangerous defective condition notwithstanding its conformity to Federal standards” (Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 440), and the jury may be so cautioned. Moreover, in instructing the jury the trial judge may avoid unnecessary highlighting of safety-standard evidence by following the approach of the trial judge in this case, who refused to submit Chrysler’s proposed instruction on safety-standard evidence to the jury, presumably on the ground that it would have unnecessarily overemphasized the importance of that evidence.

The adversary process will also tend to diminish the misleading character of minimal or antiquated safety standards. As the plaintiffs did in this case, plaintiffs are free to dispute the importance of safety-standard evidence in deciding whether a product is defective or unreasonably dangerous. We believe that the jury is capable of giving the proper weight to this type of evidence, and for that reason Rucker should not be overruled without further experience with the type of evidence it permits to be introduced.

The plaintiffs also claim that the jury’s verdict in favor of Chrysler was against the manifest weight of the evidence. The proper inquiry on this appeal is whether there is sufficient credible evidence in the record to support the jury’s verdict in favor of Chrysler, not whether it would have been equally reasonable for the jury to have reached the contrary result. (Lawson v. G. D. Sea rle & Co. (1976), 64 Ill. 2d 543, 548; Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 575.) We find that the evidence in this case was sufficient for the jury to conclude that the rear-seat-anchoring system was not defective, or that it was not unreasonably dangerous, or that it was not the proximate cause of the injuries suffered by the two passengers in the rear seat. If the jury reached any one of these conclusions it was compelled to render a verdict in favor of Chrysler.

As noted above, plaintiffs argued that the Chrysler rear-seat-anchoring system was defective because under the conditions of the accident the Z-shaped anchoring wire could become disengaged from the floor-mounted bracket, thereby permitting the rear seat to move forward and drop down. The plaintiffs argued that the combination of this forward and downward movement caused Mrs. Meister and Mrs. Moehle to slide underneath their seat belts. As a result of this dangerous “submarining effect” their seat belts impacted them in the soft abdominal region instead of in the harder pelvic region, thus causing their serious abdominal injuries.

On the issue of the wire disengagement, John Marcosky, an engineer, testified for the plaintiffs that in his opinion the Z-shaped wire did become unfastened from the floor-mounted bracket. Mr. Marcosky based this testimony on a deformation of the right bracket and on scrape marks on the floor of the rear-seat area, both allegedly caused when the Z-shaped wire disengaged from the bracket. However, Leslie Parr, an expert witness for Chrysler, contradicted this testimony by observing that it would not have been possible for the wire to disengage from the anchoring bracket under the conditions of this accident and that in fact the deformation of the bracket actually made it less likely that the Z-shaped wire could have become unfastened. On the basis of this testimony the jury could have reasonably found that the Z-shaped wire did not disengage and that the anchoring system therefore was not defective.

On the issue of the seat movement the evidence was conflicting. Mrs. Meister testified that she felt the rear seat moving backward and forward during the accident. Two witnesses at the scene of the accident testified for the plaintiffs that the seat seemed slightly ajar. A rescue crew member who inspected the vehicle several hours after the accident also testified that the back seat was pulled out several inches, although he had made an earlier statement that the rear seat looked “as good as the day it was new.” Chrysler’s expert witness, Leslie Parr, testified that even if the Z-shaped anchoring wire did disengage from the floor-mounted bracket, the rear seat would have been restrained by other parts of the automobile: the rear doors, the drive-shaft tunnel and the drive-shaft riser. Thus, Mr. Parr noted that the rear seat could not move forward without a deformation of the automobile’s undercarriage, of which there was none here. Mr. Parr’s testimony was supported by three witnesses who observed the rear-seat compartment of the Moehle automobile shortly after the accident. None of these witnesses observed any displacement of the rear seat. The jury’s verdict for Chrysler, therefore, could reasonably have been based on the testimony of Chrysler’s witnesses that the rear seat did not move. If the seat did not move, the jury was compelled to find that the anchoring system was not defective, or if defective was not unreasonably dangerous.

On the issue of proximate cause, Edward Moffatt, a biomechanical engineer, testified that seat belts are designed so that in an accident the automobile occupant will normally pivot around the seat belt with the belt impacting on the pelvis. Retention of the seat in its fixed position is essential for the proper operation of the seat belt, because the seat-ramp angle assists in steering the occupant’s body into a proper impact with the belt. When the seat collapses, Mr. Moffatt testified, a “submarining effect” occurs in which the occupant slides underneath the seat belt and the belt impacts the occupant’s soft abdominal area, causing injuries of the type suffered by Mrs. Moehle and Mrs. Meister.

Chrysler’s expert witness, Dr. Donald Huelke, contradicted all of Mr. Moffatt’s testimony. Dr. Huelke testified that “submarining” refers to a phenomenon that was observed in crash testing done with a prior generation of anthropomorphic dummies which had unsophisticated pelvic structures. The effect is no longer observed in more realistic dummies. Moreover, he observed that when it occurs “submarining” is not necessarily related to seat-cushion movement and that the phenomenon can occur without such movement. Dr. Huelke also testified that other forces could cause the same pattern of injuries as those caused by “submarining” and that in fact it was his opinion that the injuries suffered by Mrs. Meister and Mrs. Moehle were simply caused by normal body responses in an impact with seat belts in a high-speed collision. If the jury believed Dr. Heulke’s testimony, it could reasonably have concluded that a defect, if any, in the rear-seat-anchoring system did not proximately cause Mrs. Moehle’s and Mrs. Meister’s abdominal injuries.

In summary, we have not been furnished with adequate reason to overrule or modify Rucker so soon after its adoption. Nor are we persuaded upon our review of the record that the verdict in this case was against the manifest weight of the evidence.

The judgment of the appellate court is affirmed.

Judgment affirmed.

JUSTICE GOLDENHERSH,

dissenting:

I dissent and would reverse the judgment and remand the cause for a new trial. As Justices Ward, Moran and I pointed out in our dissent in Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 38, and Rucker v. Norfolk & Western Ry. Co. (1979), 77 Ill. 2d 434, 441, in an action based on strict liability, evidence of the defendant’s compliance with governmental requirements is irrelevant. The effect of the introduction of that type of evidence is to focus attention on the question whether the defendant was at fault. The question in a product liability case is not whether the defendant was at fault, but whether the product was defective. I agree with the majority that ordinarily there is, and properly should be, reluctance to modify an earlier decision soon after its adoption. But when the earlier decision is clearly and unmistakably erroneous, as was the decision in Rucker, it should be overruled as quickly as possible.

WARD and MORAN, JJ., join in this dissent.


author: JUSTICE UNDERWOOD

text:
    (No. 51870.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DENNIS WILLIAMS, Appellant.

      Opinion filed November 18, 1982.
    Rehearing denied January 28, 1983.

      Ralph Reubner and Steven Clark, Deputy Defenders, and Martin Carlson and Richard E. Cunningham, Assistant Appellate Defenders, of the Office of the State Appellate Defender, of Chicago, for appellant; and Dennis Williams, pro se.

    Tyrone C. Fahner, Attorney General, of Springfield, and Richard M. Daley, State’s Attorney, of Chicago (Melbourne A. Noel, Jr., Assistant Attorney General, and Michael E. Shabat and Joel A. Stein, and Kevin Sweeney, Assistant State’s Attorneys, all of Chicago, of counsel), for the People.
   JUSTICE UNDERWOOD

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Dennis Williams was convicted of two counts of murder, two counts of aggravated kidnaping, and rape. A separate sentencing jury found the necessary aggravating factors and that there were no mitigating factors sufficient to preclude imposition of the death sentence. The court accordingly sentenced defendant to death for the murders and to concurrent extended terms of 60 years for the other offenses.

Defendant appealed directly to this court pursuant to article VI, section 4(b), of our 1970 constitution, and on April 16, 1982, we filed an opinion in which we affirmed defendant’s convictions and death sentence over his objection, inter alia, that he was denied the effective assistance of counsel. While Williams’ petition for rehearing was pending, a disciplinary case involving his attorney, Archie Benjamin Weston (In re Weston (1982), 92 Ill. 2d 431), was orally argued in this court. As a result of the additional information with which we were presented, of which we had been unaware during the preparation and filing of our Williams opinion, we directed the clerk of this court to forward copies of the record, briefs and taped argument in In re Weston to counsel for both sides in Williams. We then requested and subsequently received suggestions from the attorneys concerning the possible relevance of the disciplinary matters to the capital case. We thereafter allowed Williams’ petition for rehearing.

Williams and codefendants Willie Rainge and Kenneth Adams were charged by information with the aggravated kidnaping and murders of Larry Lionberg and Carol Schmal, the rape of Carol Schmal, armed robbery, and armed violence. Another codefendant, Paula Gray, was indicted several months later for the same murders and rape and for perjury. Mr. Weston represented Williams, Rainge and Gray; Adams retained separate counsel. The four were tried in September and October 1978 in one courtroom by two separate juries. One jury heard evidence relevant only to defendants Williams, Rainge and Adams, and the other jury heard evidence relevant only to Gray. Both juries heard evidence relevant to all four defendants. The procedure was suggested by the State because Paula Gray had made statements inadmissible against the others under Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. The substance of the Bruton problem was also the basis of the perjury charge against Paula Gray. She had given sworn testimony to a grand jury implicating the other three defendants in the abduction, murders and rape. However, at their preliminary hearing she recanted her grand jury testimony under oath, claiming that the police had forced her to tell a “lie” to the grand jury. The State intended to use these statements in its case against Gray but realized that under Bruton they were inadmissible against Williams, Rainge and Adams.

Williams, Rainge, Adams, and Gray were convicted of murder and rape, Williams and Rainge were also convicted of aggravated kidnaping, and Gray was convicted of perjury. Williams and Rainge requested a new sentencing jury, which returned a death penalty verdict on February 6, 1979, against Williams. Rainge was sentenced to concurrent terms of natural life imprisonment for the murders and to extended terms of imprisonment for the other offenses. Adams was sentenced, after a bench hearing, to extended terms of" imprisonment, and Gray, in a later hearing, was also sentenced to extended terms of imprisonment. Those convictions have been affirmed. People v. Gray (1980), 87 Ill. App. 3d 142, cert. denied (1980), 445 U.S. 944, 63 L. Ed. 2d 777, 100 S. Ct. 1340; People v. Rainge and Adams (1st Dist. June 7, 1982), No. 79—565 (petition for rehearing pending).

In In re Weston, the Hearing Board and Review Board of our Attorney Registration and Disciplinary Commission both recommended that respondent, Archie Weston, be disbarred because of misconduct involving his handling of the estate of his client, Ella C. Graham, who died intestate in 1974. In April 1978, a son of one of the heirs complained to the Attorney Registration and Disciplinary Commission. Respondent was informed of the complaint, and the Inquiry Board forwarded a copy of the complaint to the judge of the probate division of the circuit court of Cook County. In August, a rule was issued by that court upon respondent to show cause why he should not be held in contempt of court. After securing a continuance, respondent failed to appear in probate court in November 1978 and was removed as administrator. He was subsequently adjudged in contempt of court. (That order was later quashed after partial payment of amounts which the court had found owing.) The administrator de bonis non also filed a petition to surcharge respondent for waste and neglect, and a judgment for $23,000 was thereafter entered against him, apparently resulting in a sheriffs sale of his home.

The Hearing Board found that respondent neglected legal matters entrusted to him, that he committed acts prejudicial to the administration of justice and acts which intentionally caused damage and prejudice to his client, and that he commingled and converted a client’s funds, all in violation of various disciplinary rules of the Illinois Code of Professional Responsibility. Respondent neither answered the disciplinary complaint nor appeared to defend himself. The allegations of the complaint thus stood admitted, and we held them adequately supported by the evidence. We accordingly ordered that respondent be disbarred. In re Weston (1982), 92 Ill. 2d 431.

Williams urges that the matters disclosed by the record and proceedings in In re Weston provide further support for his contention that he was denied the effective assistance of counsel, whereas the State submits that the evidence of counsel’s performance in an unrelated matter is irrelevant to the question of counsel’s effectiveness in the capital case. We agree that ordinarily the record of counsel’s performance at the trial in which his performance is questioned is the only relevant consideration in determining whether his client was afforded the effective assistance of counsel. We believe, however, that, in the unique circumstances of this capital case, fundamental fairness requires us to examine the additional information now before us concerning counsel’s misconduct and the events occurring during the same period that he represented three defendants in a capital case to determine whether it has any bearing on the quality of that representation. We consider first, however, whether the evidence was sufficient to prove defendant guilty beyond a reasonable doubt.

Resolution of factual disputes and the assessment of the credibility of the witnesses, is, of course, for the jury (People v. Carlson (1980), 79 Ill. 2d 564, 583; People v. Zuniga (1973), 53 Ill. 2d 550, 559), and we will not reverse a judgment of conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the guilt of defendant remains (People v. Lewis (1981), 88 Ill. 2d 129, 151; People v. Carlson (1980), 79 Ill. 2d 564, 583; People v. Clark (1972), 52 Ill. 2d 374, 387).

The evidence showed that Larry Lionberg worked a night shift at a gas station at 180th Street and Halsted near Homewood. He was visited there by his fiancee, Carol Schmal, and another couple. Larry and Carol were last seen by their friends about 2:15 a.m. on May 11, 1978, although Larry apparently made a call to a former employer from the station about 2:30 a.m. At 6:30 a.m., the owner arrived at the station and found it unattended, open and ransacked. Some money and merchandise valued at $300 were missing. Police were called. Carol’s car was found at the station; her purse was on the front seat.

The victims’ bodies were found on May 12 at about 10:30 a.m. in East Chicago Heights. The investigating officer, P. J. Pastirik, testified that Larry was found face down in a nearby field, shot in the head twice and the back once. Carol was found in an upstairs room of a nearby abandoned townhouse at 1528 Canon Lane. Carol, also face down, had been shot twice in the head. She was clothed in knee-socks and a partially removed sweater and brassiere, and lying on a pair of jeans. A piece of plywood was covering the lower part of her body. The investigating medical officer said that she had been shot where she was found but could not say with certainty that Larry had been. Tests run on a vaginal swab taken from Carol at that time indicated that she had had intercourse within the past 36 hours. There was no trauma to the vaginal area; no foreign pubic hairs were found. Neither Carol’s boots nor the murder weapon was recovered. Testimony indicated that bullet fragments recovered from each body had been fired from the same gun. Powder burns around Carol Schmal’s wounds indicated the weapon was fired from a distance of six to 12 inches.

While Officer Pastirik was at the scene the substance of two anonymous calls was relayed to him. The calls came from an unidentified male with a “black voice” who said that the people who committed the murders were at the scene of the investigation. He also described a red Toyota and gave a license number reported to the officer as GA 1390. It is unclear whether the caller connected this number with the red Toyota. Officer Pastirik testified that as he and a partner walked towards a rather large crowd that had gathered, two black men began walking briskly away. The men were stopped and questioned when they reached a red Toyota parked nearby. Dennis Williams, Verneal Jimmerson and the car were taken to the station. Williams was never released. (The charges against Jimmerson were dropped when Paula Gray recanted her testimony at the preliminary hearing.) Defendants Rainge and Adams were questioned later that evening but were released; however, Adams’ car, a beige Toyota bearing plates numbered GX 1390, was held.

The following day, May 13, Officer Pastirik interviewed Charles McCraney, who lived on Hammond Lane in East Chicago Heights. He admitted to making the anonymous phone calls and identified both cars as those he had seen in the early morning hours of May 11. At this time, or shortly thereafter, McCraney also told the police what he had witnessed on the 11th but said he would not identify anyone until the police promised to relocate him. He eventually identified all four defendants as people he had seen in the early morning hours of May 11, near 1528 Canon Lane.

That evening Officer Pastirik interviewed Paula Gray and her sister, Paulette, who had come to the station with their mother. The substance of the conversation with the Grays was not admissible in the male defendants’ trial, but it was at this time that Paula first told her story to police. Her mother was apparently present during some of the questioning. According to Pastirik’s testimony, which did come out at the sentencing hearing, Paulette Gray told him that Paula had told her and her mother about the murders on the morning of May 11. Paula apparently went with police to the scene later that night to point out where the gun was thrown in the creek and where Carol Schmal’s boots were put. They were never found. Later that evening Rainge and Adams were taken into custody and an assistant State’s Attorney from the Felony Review Unit questioned the male defendants and the Gray sisters. A few days later Paula Gray gave grand jury testimony substantially the same as the story she told Officer Pastirik. However, as earlier noted, at the preliminary hearing for the male defendants, she recanted. She was indicted on September 1 and retained Williams’ counsel to represent her. Jury selection began on September 14.

The State’s case included testimony by one parent of each of the victims, who testified as a “life and death” witness. The owner of the gas station and the friends who had last seen the victims placed the time of abduction as between 2:30 and 6:30 a.m. on May 11. Various police witnesses testified about discovering the bodies and receiving the anonymous phone calls.

Charles McCraney testified before both juries. He stated that as of May 11 he had been a resident of 1533 Hammond Lane for about two weeks. From a vantage point in one upstairs room he could see his car parked on Hammond Lane as well as several other cars which were at various times parked about 10 feet away from his, in front of Paula Gray’s home at 1525 Hammond Lane. From a window on the other side of his home he could see across a courtyard to an abandoned townhouse at 1528 Canon Lane, where the body of Carol Schmal was later found.

McCraney testified that on the night of May 10-11 he was home playing his guitar and rehearsing music. Because he was worried about the “teenagers” in the street possibly tampering with his car, every 15 minutes or so he would go upstairs to look out his window and check on it. Continuously parked in the street near his car, from about 11 p.m., were a blue Chevrolet and a beige Toyota (Adams’). At various times a yellow Vega (Rainge’s) and a red Toyota (Williams’) were also there. Some time between 2:30 a.m. and 3 a.m. the red Toyota appeared and parked next to the Chevrolet and beige Toyota. Within a few minutes the yellow Vega drove up very fast. McCraney saw the red Toyota then drive to the street light by his car; the driver, whom he identified as Williams, got out and broke the light. Williams then returned to the parked cars and picked up the driver of the Vega, whom McCraney identified as Rainge, and drove off.

McCraney, now more worried about his car, went out to check on it. He saw Paula Gray and an unidentified man sitting in the Chevrolet. He did not “pay attention” to the beige Toyota and returned to his music. Within a few minutes he heard a car revving its engine in the courtyard, and he returned to his upstairs window. The red Toyota was stuck in the mud near 1528 Canon Lane. From his other window he saw four people leave the beige Toyota and run, some through an abandoned building or through the courtyard, toward 1528 Canon. He identified Adams as one of the group. The red Toyota was now freed; Williams and Rainge got out and joined the group, now six to eight people, and entered the building at 1528 Canon. He said that he saw no women nor any “white people” in this group.

McCraney, feeling his car was now safe, paid no further attention to the activity outside, but about IV2 hours later he heard a shot from the direction of the townhouse the group entered. He had heard shots in that neighborhood frequently and took no action. During daylight, a few hours later that morning, he saw Williams again pull up to the now-broken street light and kick the glass out of the street.

The next day McCraney saw Williams in the crowd that had gathered in the field around the body of Larry Lionberg. McCraney said Williams was asking people there, jokingly, whether they had shot “those people.” He overheard him say, again jokingly, “I saw them jump when they shot them.” This was prior to Carol Schmal’s body being found. When it was found, McCraney put “two and two together” and made his anonymous phone calls.

David Jackson was called to testify about a conversation between Williams and Rainge that took place on May 15. Jackson overheard these two talking in a cell in the intake section of the Markham police station. Jackson, who had been arrested for burglary, was in the cell with Williams, Rainge, Adams and Jimmerson. Williams and Rainge were talking; the other two sat apart on the other side of the cell. Jackson said that Williams and Rainge each admitted to having had sex the night before and that they “really shouldn’t have took it from the lady.” Later Williams told Rainge he was “glad he took care of the guy” because “he kept running off with his mouth.” He reassured Rainge not to worry because “they’re gone” and “the piece” would never be found. Williams also said he would have to “get somebody to take care of the lady that seen them in the neighborhood the day they got arrested.” On cross-examination, Jackson said Adams and Jimmerson did not take part in the conversation. He also said that he had a grudge against Williams and Rainge because his wife had, some time before, identified them as the two who had stolen a television from her at gunpoint and roughed up his kids.

The balance of the State’s case dealt with physical evidence. Tests run on the vaginal swab showed seminal fluid from a person with type A blood. They also indicated the possibility of intercourse with persons having type A blood with a trace of “ ‘H’ substance,” and, possibly, type 0 blood. This indicated that Carol Schmal had had intercourse with someone who secreted these blood types in their body fluids. Williams had type A blood; Adams had type A with a slight trace of “ ‘H’ substance”; Rainge had type 0 blood. All three secreted their blood types in their body fluids. Carol Schmal also had type 0 blood, as did Larry Lionberg, but it was impossible to tell if either of them was a “secretor.” However, if Carol was, this could explain the positive test for 0 type blood or for A type with “ ‘H’ substance.” It does not appear, however, that it would account for the positive test for type A blood.

Three hairs were also admitted into evidence. These were taken from Williams’ car, two from the back seat and one from the trunk. The hairs were said to be from Caucasians. There were no dissimilarities between one of the hairs from the back seat and one from the trunk and the hair of Carol Schmal. The other hair from the back seat equally matched the hair of Larry Lionberg. The expert who testified said he could not say with certainty that the hairs in fact came from the victims. On redirect examination he said that in a Royal Canadian Mounted Police study of relatives, it was found that there was a 1 in 4,500 chance that similar hairs, that is, hairs matching in 99.9% of their characteristics, came from different heads. The expert testified that it would be less likely that matching hairs would come from different heads among the general population, but he refused to speculate about the odds when three similar hairs were found.

Before the State rested, the jury was taken out to the East Chicago Heights neighborhood, over defense objection, to view the scene. The trip was taken during the day for the safety of the jury. When they returned the State recalled Officer Pastirik to testify about changes in the area since the day of the murders. At the close of the State’s case the court denied defense motions for directed verdicts.

Williams, Rainge and Adams presented alibi defenses. Williams said he got home about 1:30 a.m. after taking Jimmerson and his family to Chicago. He said he stopped just before going home, for about five minutes, to talk to Adams and Gray, whom he found in Adams’ car parked in front of Gray’s home. He then went straight home and did not get up until about 9 a.m.

Rainge and his girlfriend both testified that they were together at Rainge’s home with other members of his family (who were already in bed) until about 3:30 a.m. He also testified that on May 11 he worked from 9 a.m. until 7 p.m.

Adams’ mother testified that her son was home asleep about 3:15 and he was still asleep at 7 a.m. when she got up. After Adams’ attorney put two documents in evidence, one indicating that license number GA 1390 was registered to Virginia Miller of Galesburg, and the other indicating that there had been rainfall in the Chicago area in the morning hours of May 11, the defense rested.

In rebuttal, the State called two witnesses. Virginia Miller testified that she had owned a 1969 Toyota, license number GA 1390 in May of 1978; that in March of 1978 a license plate was lost or stolen; and that her car had not been in Cook County during May 1978 and for some time prior to that date. The State also called an 11-year-old boy (one of the boys who found Lionberg’s body) who testified that at about 5 p.m. on May 11 he had seen Rainge in the field where the body was found. Closing arguments followed.

In our judgment the evidence warranted submission of the case to the jury. Although the evidence is in large part circumstantial, it does tend toward “a satisfactory conclusion” and produces “a reasonable and moral certainty” that the defendant committed the murders and rape. (People v. Williams (1977), 66 Ill. 2d 478, 485; People v. Marino (1970), 44 Ill. 2d 562, 580; People v. Bernette (1964), 30 Ill. 2d 359, 367; People v. Magnafichi (1956), 9 Ill. 2d 169, 173; People v. Fletcher (1978), 72 Ill. 2d 66, 71.) As this court has often stated: “ ‘The jury-need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt.’ ” People v. Foster (1979), 76 Ill. 2d 365, 374, and cases cited therein.

The evidence, if believed by the jury, establishes that Williams and others were present in the area where the murders occurred and at the time they must have occurred. The jury was not bound to credit the alibi defense of Williams as against the eyewitness testimony which contradicted it. (People v. Berland (1978), 74 Ill. 2d 286, 307; cert. denied (1979), 444 U.S. 833, 62 L. Ed. 2d 42, 100 S. Ct. 64; People v. Jackson (1973), 54 Ill. 2d 143, 149.) The circumstances of the disappearance of the victims, the places in which they were found, the state of undress of Carol Schmal, and the presence of seminal material that reacted positively to a test for type A blood indicate that they were forcibly abducted, that Carol Schmal was raped, and that Larry Lionberg and Carol Schmal were murdered. The net of circumstantial evidence tends forcibly toward a conclusion that Dennis Williams was among those responsible for the crimes. He was present at the time and place; his blood type matches that of one who raped Carol Schmal, hairs matching those of both victims were found in his car; two witnesses heard him make statements which suggested that he was involved in both the murders and the rape. Circumstantial evidence may be used to establish guilt (People v. Williams (1977), 66 Ill. 2d 478, 484; People v. Bernette (1964), 30 Ill. 2d 359, 367; People v. Russell (1959), 17 Ill. 2d 328, 331), and any inconsistencies or lack of “links” in this chain are at most minor. We believe, therefore, that the evidence, if believed by the jury as it apparently was, was sufficient to prove defendant guilty beyond a reasonable doubt. Nevertheless, because of the newly acquired information concerning Williams’ counsel, which we have concluded may well have had an effect on counsel’s ability to represent his client in the trial of this capital case, we can no longer say, with any degree of assurance, that Williams received the effective assistance of counsel guaranteed by the Constitution. We accordingly conclude that he must be given a new trial.

Williams cites numerous instances of inaction by counsel to demonstrate that he was denied the effective assistance of counsel, including: the failure to make a motion to suppress the physical evidence seized from Williams’ car — evidence which was perhaps crucial to the State’s case; the failure to object to the testimony concerning the Canadian study on hair comparisons; the failure to object to prejudicial material received by Williams’ jury which it is alleged was designed to insure that the jurors would know that Paula Gray had accused her codefendants; the failure to object to the rebuttal testimony of the 11-year-old boy; the failure to object to the information imparted to the jury concerning the manner in which its verdict would be reviewed; the failure to object to testimony concerning the good character of the decedents; the failure to demand a full evidentiary hearing for the purpose of discovering the existence of a written statement allegedly made by Charles McCraney within a few days of the murder; and the failure to make a motion for a new trial.

We originally examined, under our Rule 615(a) (73 Ill. 2d R. 615(a)), the more significant errors alleged to have occurred, notwithstanding the absence of objections and the failure to make a motion for a new trial, and found no plain error. We indicated that counsel’s decision not to make a motion to suppress was perhaps an error in judgment, and that such errors do not establish incompetency (e.g., People v. Washington (1968), 41 Ill. 2d 16, 21; People v. Green (1967), 36 Ill. 2d 349, 351). However, we are now aware, for the first time, of the unique circumstances under which counsel in this case was operating at the time of the capital trial. In the light of these facts, we can no longer characterize counsel’s decision not to make the motion to suppress the hair evidence or to take other action on his client’s behalf as professional misjudgments made with full knowledge of the applicable law and the facts. Moreover, while we do not believe that the burden of defending three clients for capital murder before two juries, standing alone, necessarily reduced counsel’s effectiveness, that fact in view of the new information now before us cannot be disregarded. In our original opinion we noted the additional burdens the simultaneous trials before separate juries placed on both the court and counsel, and for this and other reasons cautioned against their future use. That added burden, of course, accentuates the problems now posed.

It is apparent to us that the unique facts in this case require that we forgo application of either of the established tests, normally applied in determining whether a defendant has been deprived of his constitutional right to the assistance of counsel. (See, e.g., People v. Lewis (1981), 88 Ill. 2d 129, 153-54 (appointed counsel); People v. Murphy (1978), 72 Ill. 2d 421, 436 (retained counsel).) As we originally indicated, the voluminous record here shows that there were many instances where counsel made able and vigorous objections and presentations, and we cannot characterize his performance as actual incompetence or as of such a low caliber as to reduce the trial to a farce or sham. We believe, however, considering the unique circumstances and sequence of events in this capital case, which will rarely, if ever, be duplicated, that the interests of justice require that Dennis Williams be granted a new trial.

Accordingly, the judgment of the circuit court is reversed and the cause is remanded to that court for a new trial.

Reversed and remanded.