HowJudgesDontThink

THE JOURNAL JURISPRUDENCE
(2011) J. JURIS 59
HOW JUDGES DON’T THINK:
THE INADVERTENT MISUSE OF PRECEDENT IN
THE STRANGE CAREER OF THE ILLINOIS DOCTRINE OF ANTAGONISTIC
DEFENSES, 1876-1985
by Scott Hamilton Dewey, Ph.D., J.D., UCLA School of Law*
Abstract: This article reviews the theory of precedent, including various traditional arguments for
or against a common law system based on precedent and stare decisis. The article then closely
follows the gradual creation of precedent in the 200 cases that comprise the entire history, from
1876 to 1985, of the development of Illinois’ rule requiring severance of jointly indicted
codefendants with antagonistic defenses. During that period, the Illinois rule was assumed into
existence through a process of lawyers taking words out of context, courts injecting those words
into case law in the course of rejecting the lawyers’ arguments, later courts erroneously assuming
those words to have a meaning earlier courts never gave them, other courts dutifully repeating those
assumptions, and the words thus coalescing into rules, then splitting into different versions of the
rule that lost any trace of their questionable origins—all through an apparently unintentional
process as busy courts did their best to rely upon precedent to efficiently resolve what was a minor
issue in most cases. The article concludes that along with the various other more established
arguments against reliance on precedent, such as findings of conscious or unconscious but
intentional manipulation of precedent to reach case outcomes that fit judges’ personal or political
preferences, America’s lawyer-driven adversarial common law system operates as an engine of
linguistic instability that leads courts to lose track of the meaning of earlier court opinions and
bend and twist precedent unintentionally, even as they try to observe precedent in good faith. The
inherent and seemingly inevitable linguistic indeterminacy of the process of creating precedent, and
the unmoored nature of the product that results, raises further doubts whether we can properly
claim that our judicial process is truly based on precedent and stare decisis.
* Assistant Director, Research Assistance and Scholarly Support, UCLA School of Law. J.D.,
UCLA, 2003. Ph.D., History, Rice University, 1997. E-mail: scott.dewey@gmail.com. This article is
dedicated to Judge Richard A. Posner and Professor Frederick Schauer, who among all the
scholars I reviewed have, in my opinion, written most illuminatingly and captivatingly about
precedent. Thanks are due to the editorial staff of The Journal Jurisprudence for their patience and
persistence. I should also note Lynda Carr O’Conner, who helped move this project forward, if
indirectly and inadvertently.

DEWEY ON HOW JUDGES DON’T THINK
(2011) J. JURIS 60
INTRODUCTION: THE MEANING (IF ANY) OF PRECEDENT
In law school, students are, effectively, beaten over the head with precedent.
Virtually every casebook in every class piles on more precedent. Students are
reminded that precedent, and the doctrine of stare decisis that reveres that
precedent, are the foundation of our whole legal system of judge-made common
law. They are drilled in the use of precedent and are forced to memorize various
checklists regarding the hierarchy of precedent. Thus, whether or not precedent is
ever clearly defined, or merely assumed,1 law students breathe it in for three long
years and learn to take it for granted, with a general, mostly unstated assumption
that precedent is necessary, inevitable, and the intellectual lifeblood of the legal
profession, and that the system for creating and modifying precedent is
presumably adequate, appropriate, and sufficiently well-understood.2
This apparent professional certainty regarding precedent may make it surprising
for a current or former law student to discover that legal scholars have long
acknowledged that the meaning and operation of precedent within our legal
system are actually dimly understood and under-studied.3 Because precedent and
1 Stefanie A. Lindquist & Frank B. Cross, Empirically Testing Dworkin’s Chain Novel Theory: Studying the
Path of Precedent, 80 NYU L. REV. 1156, 1157 (2005) (“All those who have studied the law have at
least an intuitive notion of precedent or stare decisis.”).
2 Granted, students at some point will have been exposed briefly to the ideas of the legal realists
and possibly the Critical Legal Studies movement, but usually not enough to get in the way of the
overall professional adulation of precedent.
3 See, e.g., Lindquist & Cross, supra note 1, at 1157 (“Perhaps the most important, yet understudied,
area of legal research involves precedent. . . . [T]here has been only limited theorizing about, and
relatively little empirical investigation of, the operation of precedent.”); Emerson H. Tiller & Frank
B. Cross, What Is Legal Doctrine? 100 NW. U. L. REV. 517, 517, 518 (2006) (“[T]he nature and effect
of [precedent] has been woefully understudied”; “Legal researchers have extensively dealt with
doctrine as a normative matter but have given little attention to the manner in which it actually
functions.”); Larry Alexander, Constrained by Precedent, 63 S. CAL. L. REV. 1, 3 (1989) (“[O]ur
theoretical understanding of the practice [of using precedent] is still at a very primitive stage.”);
Frederick Schauer, Is the Common Law Law? 77 CAL. L. REV. 455, 455 (1989) (“For all its ubiquity,
the common law remains uncommonly puzzling.”); Frank H. Easterbrook, Stability and Reliability in
Judicial Decisions, 73 CORNELL L. REV. 422, 422 (1988) (no United States Supreme Court justice has
offered a consistent theory of precedent); Frederick Schauer, Precedent, 39 STAN. L. REV. 571
(1987); William M. Landes & Richard A. Posner, Legal Precedent: A Theoretical and Empirical Analysis,
19 J. L. & ECON. 249, 250 (1976) (“The use of precedents to create rules of legal obligation has . . .
received little theoretical or empirical analysis.”); Anton-Hermann Chroust, Law: Reason, Legalism,
and the Judicial Process, 74 ETHICS 1, 3 (1963) (“[L]egal rules and principles are never fully known
and never fully clear, except perhaps to some particularly benighted first-year law student”; “Legal
reasoning . . . is in fact ‘reasoning’ from concrete case to concrete case within a loosely defined and
probably undefinable concatenation of half-intuitive and half-discursive mental operations that are
often expressed in such vague terms as ‘precedent,’ stare decisis, and ‘legal authority’”). See also

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its use are (at least theoretically) at the core of the judicial process in our common
law system, uncertainty about the doctrine of precedent necessarily raises
questions about the legitimacy of the judicial process itself.
To the extent that legal scholars have discussed judicial use of precedent, this
discourse typically resolves into a debate between those who claim that judicial
decisionmaking based on precedent is appropriately grounded and reasonably
objective and those who claim the process is not—as with the early twentieth-
century debate between traditional legal formalists and legal realists, later revisited
during the heyday of the Critical Legal Studies movement.4 More recently, the
debate has tended to pit social scientists—chiefly political scientists, economists,
and legal scholars marching under the same banner of quantitative data analysis—
against judges and traditional non-quantitative, doctrine-oriented legal scholars,
with the social scientists self-confidently touting their quantitative analytical
techniques as powerful new tools to examine and perhaps debunk the legal
profession’s traditional rationalizations of judicial decisionmaking,5 while
traditionalists, particularly judges, have returned fire with the observations that
judging is a process too complex and subtle to be readily comprehended by the
political scientists’ data-coding and number-crunching, and that, moreover, people
who have never worked as a judge or in a court do not and cannot really know all
that goes into the process of judicial decisionmaking.6
Madeline Fleisher, Judicial Decision Making under the Microscope: Moving Beyond Politics versus Precedent, 60
RUTGERS L. REV. 919 (2008) (“It is clear to most scholars that modern accounts of the [judicial]
decision-making process are incomplete[.]”); Sarah A. Maguire, Precedent and Procedural Due Process:
Policymaking in the Federal Courts, 84 U. DETROIT MERCY L. REV. 99, 99 (2007) (“[Precedent] is a
foundational and familiar piece of U.S. law, but at the same time, it remains somewhat mystical.”).
4 See, e.g., Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate
Interdisciplinary Ignorance, 92 NW. U. L. REV. 251, 255-59 (1997).
5 See, e.g., Tiller & Cross, What Is Legal Doctrine?, supra note 3, at 522 (“Quantitative analysis . . .
provides scientific rigor to studies of law[.]”); Cross, Political Science and the New Legal Realism, supra
note 4, at 264, 313 (“[P]olitical scientists have referred to the [traditional] legal model as a
‘mythology . . . [or] meaningless’ or ‘silly’”; “[P]olitical scientists, as true legal researchers . . . ”
[emphasis added]).
6 See, e.g., Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. PA. L. REV.
1639, 1656 (2003); Patricia M. Wald, A Response to Tiller and Cross, 99 COLUM. L. REV. 235, 235
(1999) (“Judging is a complex, case-specific, and subtle task that defies single-factor analysis”);
Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 VA. L. REV. 1335, 1338-39
(1998) (“[S]erious scholars seeking to analyze the work of the courts cannot simply ignore the
internal experiences of judges as irrelevant or disingenuously expressed. . . . I think that the . . .
studies are flawed in their quantitative and qualitative analyses, and also in their interpretation of
data. . . . Finally, both pieces seem terribly naïve in their understanding of the judges on the D.C.
Circuit and how we perform our work.”); Jack Knight, Are Empiricists Asking the Right Questions
about Judicial Decisionmaking? 58 DUKE L.J. 1531, 1532 (2009) (noting skepticism of more
traditionalist colleagues on the Duke Law School faculty regarding “whether empirical studies of

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The recent debate has particularly focused on political scientists’ claims—often
called the “attitudinal model”—that quantitative analysis reveals that judges’
political ideology or party affiliation impact or determine appellate outcomes,
regardless of precedent.7 Critics have countered that studies finding ideologically-
driven decisions have tended to focus on the United States Supreme Court, an
inherently unusual and political court, and on the most politically charged
decisions among the relatively small number of federal cases that ever reach that
court, such that the studies are not particularly applicable to more ordinary
decisions from more ordinary courts—among other arguments.8
the courts accurately capture the main concerns and primary activities of judges”). Frank Cross, a
leading quantitative analyst of judicial process, acknowledged that most political scientists’ lack of
legal training was problematic. See Cross, Political Science and the New Legal Realism, supra note 4, at
285. For a trenchant early critique of applying social-scientific quantitative analysis to the law, see
Wallace Mendelson, The Neo-Behavioral Approach to the Judicial Process: A Critique, 57 AMER. POL. SCI.
REV. 593 (1963). See also RICHARD A. POSNER, HOW JUDGES THINK 2 (2008) (noting judges’
sense of difference from other lawyers).
7 Such claims have by now a lengthy lineage, a substantial part of it revolving around political
scientist Harold Spaeth. See, e.g., Harold J. Spaeth, Judicial Power as a Variable Motivating Supreme Court
Behavior, 6 MIDWEST J. POL. SCI. 54, 55, 82 (1962); Harold J. Spaeth, An Analysis of Judicial Attitudes
in the Labor Relations Decisions of the Warren Court, 25 J. POL. 290, 310 (1963); JEFFREY A. SEGAL &
HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 31, 354 (1993);
HAROLD J. SPAETH & JEFFREY A. SEGAL, MAJORITY RULE OR MINORITY WILL: ADHERENCE TO
PRECEDENT ON THE U.S. SUPREME COURT 287 (1999); JEFFREY A. SEGAL & HAROLD J. SPAETH,
THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 430-35 (2002); Richard L.
Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1719, 1759-60
(1997); Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine:
Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155, 2175-76 (1998); Gregory C. Sisk et
al., Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 NYU L. REV.
1377 (1998); Emerson H. Tiller & Frank B. Cross, A Modest Proposal for Improving American Justice, 99
COLUM. L. REV. 215 (1999); Daniel R. Pinello, Linking Party to Judicial Ideology in American Courts: A
Meta-Analysis, 20 JUST. SYS. J. 219, 229-30, 234 (1999) (synthesizing empirical studies to find
statistical confirmation that “party is a dependable measure of ideology in modern American
courts”).
8 See, e.g., Gregory C. Sisk & Michael Heise, Judges and Ideology: Public and Academic Debates about
Statistical Measures, 99 NW. U. L. REV. 743, 772 (2005) (finding overall impact of ideology in federal
courts “more moderate than large”); DONALD R. SONGER ET AL., CONTINUITY AND CHANGE ON
THE UNITED STATES COURTS OF APPEALS 115-16 (2000) (finding modest difference between
Democrat- and Republican-appointed judges in voting on various categories of cases); Michael J.
Gerhardt, Attitudes about Attitudes, 101 MICH. L. REV. 1733 (2003) (generally questioning the
attitudinal model); POSNER, HOW JUDGES THINK, supra note 6, at 27-28, 269-75 (explaining that
the Supreme Court is an inherently political court that hears a tiny subset of difficult federal cases
not easily resolved at a lower judicial level); Wald, supra note 6, at 237 (noting that lower court
judges have too many cases to process to have strong feelings about most of them and that many
cases, especially administrative law cases, “have no apparent ideology to support or reject at all”).
The understanding that the Supreme Court is less bound by precedent in the context of
constitutional cases has a long pedigree: Justice Brandeis observed in 1932 that the Court “has
often overruled its earlier decisions” involving constitutional questions and recognized the need to

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In recent years, the two sides of the debate seem to have moved gradually toward
(though not yet arrived at) a new synthesis that reduces the theoretical polarization
between the two sides, with the political scientists discovering that legal doctrine
does matter after all, at least to some degree, the traditionalists accepting that
extra-legal factors such as ideology and personal background are inextricably
woven into the fabric of judging, and the remaining debate being now more about
the degree to which, not whether, judicial decisions are influenced by both legal
and non-legal factors.9 Some scholars have recognized that the judicial reasoning
process might structure how judges go about deciding cases, and so shape the
decisions, even if it does not (entirely) determine the outcomes.10 The realization
that Supreme Court cases necessarily constitute a very small and non-random
sample of federal cases has also led legal scholars increasingly to turn their
attention to lower federal courts, where most federal doctrinal law is made
correct and improve the law by trial and error. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393,
406-07 (1932) (Brandeis, J., dissenting). Justice Douglas noted in 1946 that “throughout the history
of the Court stare decisis has had only a limited application in the field of constitutional law[,]”
unlike areas of law where correction readily could be had through legislation. New York v. United
States, 326 U.S. 572, 590 (1946) (Douglas, J., dissenting). Chief Justice Rehnquist in 1991 declared
that stare decisis is a “principle of policy,” not “an inexorable command” or “a mechanical formula
of adherence to the latest decision,” and that it is most favored where reliance interests are
involved, as with property or contract rights, not as much in cases involving procedural or
evidentiary rules. Payne v. Tennessee, 501 U.S. 808, 828 (1991). For an argument that stare decisis
should be abandoned altogether in the context of constitutional adjudication, see James C.
Rehnquist, The Power That Shall Be Vested in a Precedent: Stare Decisis, the Constitution and the Supreme
Court, 66 B.U. L. REV. 345 (1986).
9 See, e.g., POSNER, HOW JUDGES THINK, supra note 6, at 10, 42-49; Frank B. Cross, Decisionmaking
in the U.S. Circuit Courts of Appeals, 91 CAL. L. REV. 1457, 1459, 1514 (2003) (finding that “legal and
political factors are statistically significant determinants of decisions, with legal factors having the
greatest impact”); Tiller & Cross, What Is Legal Doctrine?, supra note 3, at 525-27; Knight, supra note
6, generally; LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 184, 186 (1998); Ethan
Bueno de Mesquita & Matthew Stephenson, Informative Precedent and Intrajudicial Communication, 96
Am. Pol. Sci. Rev. 755 (2002); Lindquist & Cross, supra note 1, at 1173-1177, 1205-06; Maguire,
supra note 3, at 100-01, 106, 133-34; Fleisher, supra note 3, at 920, 925, 964-67; DAVID E. KLEIN,
MAKING LAW IN THE UNITED STATES COURTS OF APPEALS 15-16 (2002); Sisk et al., supra note 7,
at 1498-1500; Jon O. Newman, Between Legal Realism and Neutral Principles: The Legitimacy of
Institutional Values, 72 CAL. L. REV. 200, 204 (1984).
10 See, e.g., Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision
Making, 96 AM. POL. SCI. REV. 305, 305-06 (June 2002); Fleisher, supra note 3, at 960-61, 966
(“[C]onceptions of judicial decision making as an outcome-oriented process ignore one of the
basic ideas underlying our system of written judicial opinions: how a judge reaches a result is as
important as the result itself. In the legal market, judges sell their reasoning as much as their
particular substantive opinions.”). For one who has worked within a court, the latter correct
observations might seem somewhat obvious, making it perhaps regrettable that attitudinalist
scholars’ overall lack of such experience so long delayed that key insight.

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regarding much larger batches of more average cases.11 As is so often the case in
the legal profession, though, most busy practicing attorneys and judges probably
have largely ignored this academic debate altogether and assume that decisions are
based on precedent (while feeling intuitively that the outcome of a case may vary
depending on to which judge it is assigned).12
If most scholars who obsess over precedent have concluded that it at least means
something to judicial decisionmaking, and if most other scholars and virtually all
practicing lawyers and judges assume that it means almost everything, then it’s
probably worth taking a moment to explain the traditional doctrine of precedent,
what it is, and how it works—in theory.
“In ordinary language, a precedent is something done in the past that is appealed
to as a reason for doing the same thing again.”13 Such an everyday definition of
precedent approximates the legal concept of persuasive authority, not necessarily
binding authority. The doctrine of precedent, however, is of course closely related
11 See, e.g., Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court
Decisionmaking, 73 TEX. L. REV. 1, 3-4 (1994) (“Inferior federal courts, as a matter of empirical fact,
play a far more important role in the actual lives of citizens than does the Supreme Court. The
behavior of the roughly 100 circuit judges and 500 district judges is, for most citizens most of the
time, far more likely to count as ‘the law’ than the pronouncements of the nine denizens of the
Supreme Court.”); Maguire, supra note 3, at 99 (noting that under doctrine of precedent, each case
disposition adds to and becomes part of legal doctrine, so “the district and circuit courts play a
profoundly important role” and have “far-reaching” influence given the “sheer number of cases
those courts hear”); Lindquist & Cross, supra note 1, at pp. 1156, 1158 (studying more than seven
hundred opinions interpreting 42 U.S.C. § 1983 from five federal circuit courts over a thirty-year
period after 1961); KLEIN, supra note 9, at 17-18 (studying federal circuit judges, as the title
implies); Cross, Decisionmaking in the U.S. Circuit Courts of Appeals, supra note 9, at 1459-60.
12 On the persistence of the traditional legalist school of thought on precedent and judicial
decisionmaking, see, e.g., Cross, Political Science and the New Legal Realism, supra note 4, at 260 (noting
that although “Classic unabashed formalism is no longer widely embraced,” Supreme Court
justices continue to espouse respect for precedent and to justify their opinions with it, and “legal
scholars have implicitly accepted the use of precedent at face value”); Tiller & Cross, What Is Legal
Doctrine?, supra note 3, at 518 (“Legal academics, unsurprisingly, have focused on the traditional
legal model of decisionmaking based on ‘reasoned response to reasoned argument’” through which
(theoretically) “one obtains ‘legal reasoning that can generate outcomes in controversial disputes
independent of the political or economic ideology of the judge’”); SPAETH & SEGAL, supra note 7,
at 314 (“Stare decisis is the lifeblood of the legal model, and the legal model is still the lifeblood of
most legal scholars’ thinking about law.”). Regarding the well-established folk wisdom in the legal
community that yes, it matters who the judge is, Posner observes, “If changing judges changes law,
it is not even clear what law is.” POSNER, HOW JUDGES THINK, supra note 6, at 1.
13 Landes & Posner, supra note 3, at 250.

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to the doctrine of stare decisis, or leaving things previously decided as they stand.14
It is stare decisis that gives precedent its (supposed) power to bind later courts,
particularly lower courts, within any particular jurisdiction. Legal scholar Edward
Levi, in his classic discussion of legal reasoning, identified a three-step process in
the creation of precedent through reasoning from one concrete case to another:
first, a “compelling” or “relevant” similarity between the facts of a pending case
and an earlier case is identified; second, the legal rule controlling the similar facts,
inherent in the earlier case, is extracted and proclaimed by the court deciding the
later case; third, that legal rule is declared to be applicable and followed (or
declared inapplicable and distinguished) by the later court.15
Although Levi’s three-step process may seem obvious to lawyers, a point perhaps
deserving emphasis is that the power and significance of any precedent is mostly
determined by the later court, not the former, in that an incipient legal rule, or
proto-precedent, initially has no power to control anything beyond the outcome
of its own case—that is, it remains merely a holding—until a later court declares it
to have that power. Like movie star wannabes in Hollywood, legal rules must wait
to be “discovered” before they can become binding precedents, and the later
court typically defines the meaning and extent of the precedent, what situations it
will bind and how far it will reach.16 Or, as legal realist Jerome Frank observed,
“For precedential purposes, a case, then, means only what a judge in any later case
says it means.”17 Because the proto-precedential holding only determines its own
case, in theory it should tend to be narrow in scope, so that normally a whole
string of later judicial decisions building upon the original holding will be required
to expand it into a more powerful and broadly applicable legal rule.18 This, in turn,
is supposed to build into the evolution of precedent a certain deliberate
gradualism, which has been called the special genius of the common law.19
14 BLACK’S LAW DICTIONARY (9th ed. 2009) translates the Latin phrase as “to stand by things
decided” and notably identifies the doctrine of stare decisis and that of precedent as one and the
same thing.
15 EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 1-2 (1949); Chroust, supra note
3, at 3-4.
16 Chroust, supra note 3, at 3; Landes & Posner, supra note 3, at 249-50.
17 JEROME FRANK, COURTS ON TRIAL: MYTH AND REALITY IN AMERICAN JUSTICE 279 (1949).
18 Landes & Posner, supra note 3, at 250.
19 Judge Posner characterizes legal reasoning by analogy, in essence, as “a method of cautious,
incremental judicial legislating” involving “a certain caution in departing from existing rules.”
Richard A. Posner, Reasoning by Analogy, 91 CORNELL L. REV. 761, 773, 774 (2006). Justice Scalia
has explained, “Of course, in a system in which prior decisions are authoritative, no opinion can
leave total discretion to later judges. It is all a matter of degree. At least the very facts of the
particular case are covered for the future. But sticking close to those facts, not relying upon
overarching generalizations, and thereby leaving considerable room for future judges is thought to
be the genius of the common law system. The law grows and develops, the theory goes, not

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The doctrine of precedent mostly looks backward, seeking guidance in the past.
Yet another point deserving emphasis is what Frederick Schauer has called “The
Forward-Looking Aspect of Precedent.”20 For even if precedent is ultimately
shaped primarily by the later court that discovers it, the original court can attempt
to force the hand of future courts to some extent by how aggressively or
conservatively, broadly or narrowly it structures a proto-precedential holding, by
how it lays out and characterizes the facts of the case decided, and by which facts
are included or left out, emphasized or minimized.21 Thus, “A judge finding it
necessary to make law for this case must nevertheless decide how wide a range of
future cases to [try to] control.”22
Moreover, contrary to the theory of common law gradualism, American courts
often are not bashful about engaging in judicial lawmaking: “With great frequency,
judges make more law than is necessary to decide the case at hand, and then, in
subsequent cases, treat this judge-made law as constraining.”23 As Schauer notes,
in words that apply to both an originating court and a later, discovering court:
Dealing with the use of past precedents thus requires dealing with the presence of
the previous decisionmaker’s words. These words may themselves have
authoritative force, . . . and thus we often find it difficult to disentangle the effect
of a past decision from the effect caused by its accompanying words. More
pervasively, even a previous decisionmaker’s noncanonical descriptions channel
the way in which the present views those past decisions. So long as the words of
the past tell us how to view the deeds of the past, it remains difficult to isolate
how much of the effect of a past decision is attributable to what a past court has
done rather than what it has said.24
through the pronouncement of general principles, but case-by-case, deliberately, incrementally,
one-step-at-a-time.” Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175,
1177 (1989). After thus explaining how the common-law approach is supposed to work in theory,
however, Justice Scalia expresses doubts about this approach as the true “course of judicial
restraint, ‘making’ as little law as possible in order to decide the case at hand” and questions
whether “both writing and reading the ‘holding’ of a decision narrowly, thereby leaving greater
discretion to future courts” really works in practice. Id. at 1178, 1179.
20 Schauer, Precedent, supra note 3, at 572.
21 See Lindquist & Cross, supra note 1, at 1163.
22 Schauer, Is the Common Law Law?, supra note 3, at 458. Judge Posner notes that appellate judges
tend to “report the facts in their opinion[s] in such a way as to make them fit the legal conclusion
smoothly or shape the precedent that the decision will create.” POSNER, HOW JUDGES THINK,
supra note 6, at 69.
23 Schauer, Is the Common Law Law?, supra note 3, at 457.

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Schauer’s observation should give comfort to anyone who has ever experienced
frustration at trying to extract the “rule” from a case, whether as a law student,
clerk, attorney, or judge. For the creation of precedent involves a potentially
complex dance between the original court and the later discovering court in their
descriptions and characterizations of factual situations and legal principles. For
purposes of the present article, it is important to remember that other courts must
rely on both the original court and the discovering court to do their respective
jobs “right,” and responsibly, in creating precedent, even though there is no clear
definition or delimitation of what either court may or must do.25 Furthermore,
just as in history, where we are only able to see the past “through a glass darkly,”26
Schauer notes,
The passage of time compounds the difficulty of disentangling a precedent from
its specific linguistic account, because the process of characterizing a decision does
not end with its first formulation. We necessarily and continuously reinterpret the
past as we proceed into the future. People other than the initial decisionmakers
use and talk about, and in the process, recharacterize, the decisions of yesterday.
The story of a decision changes as it passes from generation to generation, just as
words whispered from child to child do in a game of ‘telephone.’ Past decisions
thus come to the present encrusted with society’s subsequent characterizations of
and commentary on those decisions.27
For all these reasons, precedent can be problematic. Yet theoretically it offers clear
benefits for decisionmaking that outweigh the costs. These include (with some
conceptual overlap): fairness/equality/similar treatment of similarly situated
parties; certainty/predictability/reliance; impartiality/non-arbitrariness/
heightened appearance of justice; coherence; stability; heightened credibility,
strength, and prestige of the decisionmaking institution; standardization; and
efficiency.28 Another arguable strength of precedent in practice, though one partly
at cross-purposes to these other supposed virtues and the whole theory of the
doctrine, is its flexibility. Although precedent may be strictly and rigidly binding in
theory, in actuality, because of courts’ discretion to define the cases before them
as well as to interpret earlier decisions, courts can frequently avoid being bound by
precedent, whether by distinguishing cases on their facts or by declaring part of
25 See, e.g., Chroust, supra note 3, at 4; Lindquist & Cross, supra note 1, at 1163.
26 1 Corinthians 13:12.
28 Id. at 595-602; Earl Maltz, The Nature of Precedent, 66 N.C. L. REV. 367, 368-72 (1988); Lindquist
& Cross, supra note 1, at 1159-61. Justice Scalia, discussing judging generally and not precedent
specifically, similarly emphasizes the importance of equal treatment, the appearance of fairness,
and predictability. Scalia, supra note 19, at 1178-79.

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the language of an earlier holding to be dictum and so not part of the resulting
legal rule.29
Similarly, although a truly strict application of the doctrine of stare decisis might
preclude the pruning of any duly created precedent from the common law, in
practice such pruning is allowed and needed, and the accumulation of various
precedents in an area of law can help indicate in which direction that area of law is
evolving and which precedents are outliers or mistakes to be ignored, avoided, or
discarded.30 “It is the readiness of the common law judges to discard that which
does not serve the public that has contributed to the survival and adoption of
common law, wholly or partly, in so many lands.”31 Legal authorities, from chief
justices of American states soon after the U.S. Constitution’s ratification to the
Lord High Chancellor of the United Kingdom in 1960, have long assumed that
precedent can and must be pruned, stare decisis notwithstanding.32 Schauer notes
that flexibility and prunability, however, call into question to what degree courts
are really constrained by precedent as the doctrine of stare decisis demands,33 and
Justice Cardozo, while accepting the need for change and correction, warned
against judges disrespecting or discarding precedent too freely.34
Notwithstanding the common law’s theoretical ability to cleanse and purify itself
of problematic precedents, it clearly sometimes can have difficulty doing so.
Charles Alan Wright recounted how a bad decision in the federal Third Circuit
misinterpreted a federal rule of civil procedure so as to make summary judgment
effectively unavailable in that jurisdiction, and after seeing a fellow district judge
slapped down for challenging the erroneous decision, other district judges meekly
followed the bad precedent, precluding its coming up to the circuit again for
29 Lindquist & Cross, supra note 1, at 1163-64; Maltz, supra note 28, at 384.
30 Maltz, supra note 28, at 383.
31 HENRY J. ABRAHAM, THE JUDICIAL PROCESS 10 (7th ed. 1998).
32 Id. at 361; Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 VA. L. REV. 1, 29-31
(2001).
33 Schauer, Is the Common Law Law?, supra note 3, at 456.
34 ABRAHAM, supra note 31, at 10. Cardozo justified replacement of outmoded precedent in
language that hearkens back to a time (before the horrors of the Third Reich) when most
sophisticated western intellectuals accepted the basic tenets of eugenics: “Few rules in our time are
so well established that they may not be called upon any day to justify their existence as means
adapted to an end. If they do not function they are diseased. If they are diseased, they must not
propagate their kind. Sometimes they are cut out and extirpated altogether. Sometimes they are left
with the shadow of continued life, but sterilized, truncated, impotent for harm.” BENJAMIN N.
CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 98-99 (New Haven: Yale University Press,
1921; reprinted in CARDOZO ON THE LAW (Birmingham, AL: Legal Classics Library, 1982)).

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review.35 Wright cited this as a “classic example of what has been termed ‘a
Gresham’s Law of Procedural Precedents’—the tendency, ‘accentuated by the
reporting of the striking or technical procedural decisions more extensively than
of the merely permissive rulings,’ of bad procedural precedents to drive out the
good.”36
In addition to the features that supposedly make precedent and stare decisis good
for the law and the public, scholars have drawn on rational self-interest theory
from economics or public choice theory from political science to suggest features
that make the doctrines good for judges as well. These include, among others,
helping each judge lock in the precedential impact of her opinions by mutually
agreeing, tacitly, to respect each others’ opinions; building and maintaining the
judiciary’s prestige; helping to establish consistency in the law; helping to provide
benchmarks for setting and meeting the professional standards of the judicial
community; the “‘intrinsic pleasure’ of writing and exercising analytical prowess,”
and maximizing judges’ leisure time.37 The latter reason is closely related to the
court efficiency justification, and these two intertwined features of precedent are
particularly important for purposes of this article. Another noteworthy judicial
goal—perhaps more a negative goal than the positive goals listed above—is safety,
and something for the judge or the judicial profession to hide behind if a case
attracts the glare of public scrutiny or higher court review.38 As such, even if
precedent and precedent-based reasoning are, consciously or unconsciously, only a
fig leaf covering other motivations, it’s good for both judges and the law to have
better-constructed and more reliable fig leaves. Judge Posner has observed, “Most
judges, like most serious artists, are trying to do a ‘good job,’ with what is ‘good’
being defined by the standards of the ‘art’ in question.”39 From both within and
without the legal profession, the quality of judicial artistry is defined by careful,
reasonable doctrinal analysis.
35 See generally Charles Alan Wright, Rule 56(e): A Case Study on the Need for Amending the Federal Rules,
69 HARV. L. REV. 839 (1956).
36 Id. at 849-50, 849 n.41 (quoting from Clark, ‘Clarifying’ Amendments to the Federal Rules? 14 OHIO
ST. L.J. 241, 245 (1953).
37 Erin O’Hara, Social Constraint or Implicit Collusion?: Toward a Game Theoretic Analysis of Stare Decisis,
24 SETON HALL L. REV. 736, 748-53 (1993); Richard A. Posner, What Do Judges and Justices
Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1, 19 (1993); Lindquist &
Cross, supra note 1, at 1165-66; KLEIN, supra note 9, at 16-18; Sisk et al., supra note 7, at 1499
(noting that despite finding evidence that judicial decisions are influenced by personal and political
preferences, “it was impossible not to be captivated by the excitement, the devotion to legal
analysis, the depth and rigor of constitutional analysis, and yes, the true pleasure revealed by the
judges in their engagement with a meaningful legal problem.”).
38 See POSNER, HOW JUDGES THINK, supra note 6, at 70-72.
39 Id. at 12.

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Yet “precedent, as an inherently constraining form of argument, is more suited to
some forms of decisions than to others.”40 Law students and practitioners are
generally familiar with the longstanding distinction between more rigid legal rules
and more flexible legal standards.41 Rules constrain judicial discretion more, so are
by definition more in keeping with a strict application of stare decisis; standards
inherently allow greater judicial discretion and so fit with a weaker model of
precedent. Louis Kaplow has cogently explained, “The central factor influencing
the desirability of rules and standards is the frequency with which a law will
govern conduct[,]” such that “when frequency is low, a standard tends to be
preferable[,]” while rules are more efficient and useful in situations that recur
frequently.42 Frederick Schauer has pointed out that in some decisionmaking
situations, “it is precisely the thisness of the case that is most vital[,]” such that past
similar situations may not be similar enough to provide meaningful guidance.43
For instance, sometimes the need “ ‘to get it just right’” will trump the “virtues of
stability” that precedent offers.44 The need to get it just right helps explain the
traditionally relaxed application of stare decisis in Supreme Court constitutional
decisions.45 Whether or not there is a need to get a decision just right, any
situation that is either rare or intensely fact-specific, or both, should be one where
predictability matters less if at all, thus favoring a standard/weak precedential
approach over a rule/strong precedential approach. Chief Justice Rehnquist
appears to have followed similar reasoning in pointing to property or contract
rights cases involving reliance interests as deserving stricter application of stare
decisis (providing greater predictability), while the need for stare decisis is diminished
where procedural or evidentiary rules are involved (allowing greater attention to
“thisness”).46
In an effort to describe how the use and evolution of precedent works in practice,
both constraining judges and allowing them discretion, legal philosopher Ronald
Dworkin has suggested the model of a chain novel, with various different authors
serially adding to a single narrative with the goal, continually sought even if not
perfectly attained, of creating a seamless, coherent, and internally consistent
narrative that looks as though it might have been produced by a single author.47
40 Schauer, Precedent, supra note 3, at 604-05.
41 Tiller & Cross, What Is Legal Doctrine?, supra note 3, at 517.
42 Louis Kaplow, Rules versus Standards: An Economic Analysis, 42 DUKE L.J. 557, 563, 621 (1992).
44 Id.
45 See discussion in note 8, supra.
46 Payne v. Tennessee, 501 U.S. 808, 828 (1991).
47 RONALD DWORKIN, LAW’S EMPIRE 228-39 (1986); see also Lindquist & Cross, supra note 1, at
1167-69.

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Because the plot choices and added details from earlier coauthors in the chain
should gradually fill in the canvas with main characters, background, and story
line, the process will tend to constrain the freedom and fancy of later coauthors,
who are obliged to make additions to the chain that reasonably fit with the rest
and to develop coherent, workable interpretations of the whole novel that allow
their additions to fit.48 Under the theory of the chain novel, a responsible
coauthor thus is not at liberty to bring in entirely new storylines and characters
from left field that have no conceivable relationship to the existing story.
Stefanie Lindquist and Frank Cross point out that Dworkin’s chain novel theory is
an example of “the more general theory that precedent is path-dependent.”49 In
other words, the actions of earlier judges should progressively circumscribe and
limit the universe of options available to later judges in considering similar
issues.50 Oona Hathaway has identified three different varities of path dependence
that may illuminate the operation of judicial precedent: economic, or “increasing
returns,” path dependence, where a step in one direction makes it progressively
easier and less costly to take further steps in the same direction;51 the punctuated
equilibrium theory of biological evolution, holding that evolution occurs in a stair-
step or plateau fashion, with long periods of stasis interrupted by short bouts of
rapid change, which in the law might correspond to sweeping new statutory
enactments, constitutional amendments, or overruling of long-established
precedents;52 and sequencing path dependence, a mathematical model showing
how the order in which initially available alternatives are considered sometimes
can determine the outcomes of decisions.53
Lindquist and Cross note that for general decisionmaking theory, path
dependence offers the benefit of stability, but also the risk of locking in an inferior
alternative because it happened to come first.54 They also observe that for
Dworkin’s chain novel theory of precedent to have the path-dependent properties
48 See both sources cited in note 47. My description admittedly oversimplifies Dworkin’s lengthy
discussion of the process he envisions.
49 Lindquist & Cross, supra note 1, at 1169.
50 Id.; see also, generally, Oona A. Hathaway, Path Dependence in the Law: The Course and Pattern of Legal
Change in a Common Law System, 86 IOWA L. REV. 601 (2001).
51 Hathway, supra note 50, at 608-13, 627-35.
52 Id. at 613-17, 635-45; Lindquist & Cross, supra note 1, at 1170-71.
53 Hathaway, supra note 50, at 617-22, 645-50; Lindquist & Cross, supra note 1, at 1171.
54 Lindquist & Cross, supra note 1, at 1171-72. Jared Diamond notes the continued dominance of
the QWERTY typewriter keyboard at the expense of other, more efficient designs as an example
of path dependence locking in an inferior option. See DIAMOND, GUNS, GERMS AND STEEL 248,
418 (1997); see also Hathaway, supra note 50, at 605, 611-12. Apple Mac aficionados would similarly
point to the dominance of the IBM PC and Microsoft’s DOS-based Windows operating system.

(2011) J. JURIS 72
the theory entails, precedent must actually constrain judicial decisionmaking, and
more so as the chain lengthens.55 From their extensive quantitative analysis of §
1983 holdings from various federal circuits over a thirty-year period, Lindquist and
Cross found that contrary to the chain novel hypothesis, precedent seemed to
show a diminishing rather than increasing effect over time, suggesting that the
proliferation of precedents gives judges greater freedom to express their personal
and political predilections, as legal realists traditionally contended.56 They note
that “Many commentators have accepted [Dworkin’s] theory as a description of
how precedent should work in the conventional understanding of law but have
questioned whether it does so function in practice.”
In sum, despite legal practitioners’ generally unquestioning acceptance of these
doctrines, the theory of precedent, stare decisis, and the common law in general
remain in many ways complex, problematic, and unsettled. Further study is
warranted.
Here I will temporarily drop the mask of the objective voice from nowhere so
typical of academic writing and instead speak in the first person, in keeping with
Benjamin Franklin’s sound suggestion that one of the keys to civil discourse is,
rather than to proclaim that something is so, to say, “I conceive or apprehend”
that something is so—recognizing that one’s statements and impressions are not
necessarily either universal, objective, or correct, and inviting, not demanding, that
the audience consider them.57 For I would like to share some subjective personal
impressions regarding precedent and the judicial process. I also would like to
make an apology.
In an earlier article, I made various pronouncements about what I perceive to be
typical characteristics of judges as well as recurring problems with precedent.58 My
observations were based on personal experience, and were implicitly subject to the
Franklin qualification—but on re-reading that article for the first time in several
years, I find that I should have made that qualification explicit. Also, although I
still stand behind the content of the comments I made as being generally correct
reflections at least of my own experience, I find that the tone should have been
gentler and more respectful, both to better demonstrate my deep and sincere
55 Lindquist & Cross, supra note 1, at 1173, 1187-88.
56 Id. at 1200.
57 BENJAMIN FRANKLIN, THE AUTOBIOGRAPHY OF BENJAMIN FRANKLIN 17 (Peter Conn ed.,
2005) (1771). The law of defamation also respects this distinction.
58 Scott Hamilton Dewey, The Case of the Missing Holding: The Misreading of Zafiro v. United States, the
Misreplication of Precedent, and the Misfiring of Judicial Process in Federal Jurisprudence on the Doctrine of
Mutually Exclusive Defenses, 41 VALPARAISO L. REV. 149, 254-66 (2006).

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respect for judges and to make it clearer to readers that in my opinion, problems
that I identified with the use and transmission of precedent were not the fault of
individual judges, or even of the judicial profession, but rather result from
shortcomings of the American common law system as presently structured.
Although few federal judges have the time to slog through a 120-page law review
article on a relatively minor subject, if any did and found my tone to be
disrespectful, I must apologize.
I should also confess that having worked for years as a judicial attorney for a state
appellate court—thus as a sort of under-assistant adjunct quasi-judge, required to
research and draft a good many appellate opinions—I fell into many of the same
traps that I described in the earlier article and will describe in this one. So, far
from feeling superior to or dismissive of the judges who have faced similar
problems, I entirely sympathize. Moreover, I feel that I personally share many of
the tendencies and characteristics that I have seen in judges, so I sympathize on
that basis, too.
Let me emphasize: I respect judges as a group more than other participants in our
legal system, including attorneys and law professors. More than most of the
others, judges exemplify public service, sacrificing personal gain, leisure time, and
(usually) celebrity while working just as hard or harder than their non-judicial
counterparts. Judges, in my view, are the primary source of any actual justice that
comes out of our adversarial legal system, for while attorneys’ goal may be to win
regardless of where truth, fairness, or abstract justice may lie, judges seek to attain
all those higher goals while also carefully respecting the rules of our adversarial
legal process.59 It’s a demanding job that most laypeople and even many attorneys
and law professors do not really understand,60 and to me, judges are the usually
unsung, often underappreciated heroes of our justice system.
Over the course of several years, I worked for three (or four) different judges, one
of them a federal district judge, two of them state appellate judges (the fourth a
proto-judge—a law professor who was married to a judge, was angling for a
judgeship, and received a state judicial appointment soon after I worked for him).
Although I cannot claim any deep insight into the judicial mind, I certainly have
seen that mind, and the judicial community, at work. From that observation, I
have drawn some (hopefully valid) generalizations.
59 Also, even though judges have much more actual power and responsibility than law professors,
the average judge is less self-important than the average law professor.
60 As Judge Posner observes, “I am struck by how unrealistic are the conceptions of the judge held
by most people, including practicing lawyers and eminent law professors, who have never been
judges—and even by some judges.” See POSNER, HOW JUDGES THINK, supra note 6, at 2.

(2011) J. JURIS 74
All of “my” judges are intensely intelligent, conscientious, and hard-working.
Although I might have been somewhat fortunate, my experiences with other
chambers lead me to believe that these attributes are significantly more common
among judges than among the general public or, frankly, the general run of
lawyers. Judges tend to be high-achievers, not perhaps in a flashy way, but more
likely in a persistent, determined way. In my experience, judges worry, sincerely,
about little as well as big cases, trying hard to get them “right.” Given these
attributes, unsurprisingly, judges tend toward perfectionism, and like other
perfectionists who always make extra efforts to do things just right, they may feel
the sting of criticism, or being told they were wrong, more sharply than the
ordinary person. This helps account for reversal anxiety. Although some
commentators may tend to minimize the significance of reversal anxiety among
judges, I would not. I have seen it in operation and believe it is very real, at least
with some cases.61
I believe this is partly because, notwithstanding a century of discourse on how
judges necessarily make the law, or Justice Jackson’s institutionally self-deprecating
(but correct) observation that the Supreme Court is only infallible because it is
final,62 I suspect that most judges—unconsciously if not consciously—still believe
that if only they try hard enough and have enough time, there is a pre-existing,
objective “right” answer out there to be found, as under the traditional,
nineteenth-century formalist view of the law. It is my impression that this attitude
is held more like a religious belief than an intellectual understanding, and so
occupies a different part of the judge’s psyche than mere facts. Just as individuals,
depending on their religious traditions and how fervently they embrace them,
could “know” as a fact that abortion is legal and widespread but still be morally
appalled by the thought of it, or know that pork is at some level a food like any
other but still be unable to eat it, or know that there may be billions of stars and
galaxies out there but still believe there is a God who takes a special interest in our
61 In an earlier article, I referred to judges’ “terror” of reversal. By a straightforward dictionary
definition, this term is hyperbolic and inappropriate, given that judges face possible reversal with
every decision they make, and they continue to do their jobs. But by a different definition, the term
does apply. The “terror” judges—perhaps especially fledgling judges—feel at reversal, I believe, is
more like the terror a consistently top-performing student feels at the prospect of getting a D- or F
despite all her best efforts—the terror of feeling that your unblemished record and reputation will
be shattered, and that it will affect your future. People who have been in that situation will
remember that such “terror” can be very real. Judge Posner notes less dramatically that “judges do
not like to be reversed,” both for career reasons and power reasons, and so judges may consciously
or unconsciously bend the facts of their opinions to fit established legal categories more snugly and
so give better chances of avoiding reversal. POSNER, HOW JUDGES THINK, supra note 6, at 70.
62 Brown v. Allen, 344 U.S. 443, 540 (Jackson, J., concurring) (“We are not final because we are
infallible, but we are infallible only because we are final.”).

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planet or some of the people on it, my sense is that many/most judges “know”
that judges make law but still believe, at the core of their beings, that they are
faithfully finding it—at least as much as possible. They try not to make law. Justice
Jackson notwithstanding, judges also tend to be more respectful of authority than
the average person (or lawyer), which includes the hierarchical organization of
courts—the judicial profession appropriately tends to select such individuals. Thus
judges tend to accept the holdings of higher courts as “right” and may feel some
embarrassment when their decisions were held “wrong,” or frustration and
resignation when they had to grapple with cases so complicated and confusing
that there was little hope of getting them entirely “right.”
The judicial culture and community furthers these tendencies toward
perfectionism and a quasi-mystical faith in “right” answers. Judges read each
others’ (published) opinions63—indeed, they may be explicitly professionally
obliged to, under a duty to keep abreast of the latest doctrinal developments
within their jurisdictions. They have to follow closely which decisions are reversed
or upheld, and they (and judicial attorneys or other court staff) are also well aware
of which of their fellows tend to get reversed frequently. Some judges who are
upheld nearly all the time may develop a certain heightened confidence bordering
on smugness; judges who are reversed more than most may be the subject of
hushed whispers or tongue-clucking reflecting an unstated understanding that they
are to some extent losers at the judicial game, a game which most judges, I think,
believe implicitly if not explicitly is not just a matter of luck, or is less a matter of
luck than it may actually be. Even the “winners” at the game will remember very
clearly the few times they have ever been reversed. Reversal ratios are reviewed
whenever a judge is considered for elevation to a higher court, and judges are well
aware of this. So reversal anxiety is closely linked to hopes for elevation, which is a
powerful motivating factor for many judges. Some rare, thicker-skinned judges
might go for years tempting reversal by knowingly and deliberately making
decisions politically, ideologically, or procedurally out of step with the higher
court. Although like-thinkers will applaud such behavior, it tends to make the
wider judicial and legal community uncomfortable, sort of like apostasy to an
established religion, and may tend to lead to some degree of professional
marginalization (as with the federal Ninth Circuit to some extent). I also suspect
such behavior is much more likely to occur among the lifetime-appointed federal
judiciary than among more vulnerable elected/reconfirmed state judges.
As highly intelligent people, judges are, inevitably, both creative and curious to
some extent, but at least when it comes to judging, their creativity and curiosity
63 And thanks to the Internet revolution and online legal research, they also will frequently stumble
upon and read their colleagues’ unpublished opinions as well.

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tend to be cabined and constrained, more like with art forms focused on careful,
accurate reproductions according to an elaborate set of rules, such as performing
classical music or practicing ancient Chinese calligraphy, than freer and more
experimental art forms such as improvisational jazz or painting like Jackson
Pollock. I find that judges, as careful perfectionists, temperamentally tend to be
rule-followers and like to have rules to follow—how else can you measure your
proximity to perfection? That is entirely in keeping with their role and with public
expectations; most citizens would not like the idea of judges as risk-takers
performing uncontrolled experiments, and where courts have engaged in some
experimental behavior, such as mandating school desegregation by busing, the
public has not been amused. There are some notable judicial innovators, but they
are rare.64 I believe it is fair to say that most judges conceive of themselves and
their roles primarily as rule-followers, not innovators. As Judge Posner observes,
“The decision-making freedom that judges have is an involuntary freedom.”65
If judges generally are inclined toward perfectionism, to believe in right answers,
to follow rules and not take chances, and are aware that their performance is
monitored by their fellow judges—and if, moreover, this is precisely how the
judicial profession and society at large feel judges should be—then this helps
explain both precedent and the professional worship of precedent, as well as the
tendency of precedent to harden into firmer rules—standards becoming rules over
time, for instance. Although some legal scholars have dismissed precedent-based
decisionmaking as a mere fig-leaf covering individual preferences, or as “CYA”
judging, the fact remains that some fig leaves are better than others, judges know
that other judges (or attorneys or law professors) may scrutinize their fig leaves,
and careful, doctrine-based decisionmaking, whether for CYA purposes (including
protection from reversal and from criticism by peers or others in the legal
64 One example that springs to mind is the ubiquitous Judge Richard A. Posner, who gets away
with it as a life-tenured federal appellate judge, one of the (if not the) most respected and cited
living legal scholars in America, and an uncommonly effective writer. For one minor sample, see
the discussion of Posner’s innovative handling of the single most important antagonistic defenses
case ever, Zafiro v. United States, 506 U.S. 534 (1993)/United States v. Zafiro, 945 F.2d 881 (7th Cir.
1991), in Dewey, supra note 58, at 160-65. Another example of a judicial innovator is one of my
personal favorite judges, Judge Jack B. Weinstein of the Eastern District of New York, who
frequently has experimented creatively with rules of procedure and evidence in tackling some of
the biggest and most complex and difficult class-action litigations of the past half-century,
including those regarding asbestos and Agent Orange. As a federal district judge, though (hence
more subject to reversal than circuit judges are), Judge Weinstein’s judicial innovations reportedly
have led to reversal fairly often and I suspect might make many more traditional-minded judges
uncomfortable. See Martha Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary
Administrative Agencies, 97 COLUM. L. REV. 2010, 2031 (Nov. 1997) (noting frequent reversals by
the Second Circuit that won Judge Weinstein the nickname “ ‘reversible Jack’”).
65 POSNER, HOW JUDGES THINK, supra note 6, at 9.

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profession) or not, is exactly what our legal system expects judges to do.66 As
various scholars have pointed out, careful, precedent-based reasoning as a
requirement for judicial decisionmaking—moreover, reasoning that is reviewed by
other appellate panel members—necessarily helps to inject professional discipline
into judicial process even where decisions may be motivated all or in part by
personal or political preferences.67 Anyone who has worked closely with judges
can attest that they work much harder, and suffer over doctrinal reasoning much
longer, than would be necessary just to create a minimum doctrinal fig leaf
(justifying or rationalizing argument). Furthermore, as Judge Wald has rightly
pointed out, the incredibly wide range of issues that can come before generalist
judges helps to assure that in many or most cases, judges probably will not have a
strong personal preference one way or the other.68 As Judge Posner observes,
most cases are routine.69
Another factor that, I believe, favors precedent involves pulling aside the black
robes a little,70 for in reality, much of the work of courts is now done by judicial
adjuncts—clerks in the federal courts, clerks or judicial attorneys in state courts.
Judges manage teams of subordinates, and on many opinions act as chief editor
rather than chief author. That is nothing to be embarrassed about, or to try to hide
from the public—it’s the way the system works, and has to, unless the public
wants to pay for a lot more judges or find a way to limit the volume of litigation
(or criminal activity), or else accept much more summary justice.71 Practices vary,
66 Notably, the main difference between published and unpublished opinions is the elaborateness
of the precedential fig leaf. Depending on the judge, the chambers, or the case, unpublished
opinions are often not so different from published ones.
67 See, e.g., Fleisher, supra note 3, at 960-61, 966; Richards & Kritzer, supra note 10, at 305-06, 307-
08 (June 2002); POSNER, HOW JUDGES THINK, supra note 6, at 12 (“Most judges, like serious
artists, are trying to do a ‘good job,’ with what is ‘good’ being defined by the standards for the ‘art’
in question. The judicial art prominently includes the legalist factors, and so those factors figure
prominently in judicial decisions—and rightly so.”). Posner is forthright regarding how non-
doctrinal considerations also figure into the equation of judicial decisionmaking, however. See id. at
10-11, 72-73 (and generally).
68 Wald, supra note 6, at 237.
69 POSNER, HOW JUDGES THINK, supra note 6, at 46.
70 Judge Posner notes, frankly, that “most judges are cagey, even coy, in discussing what they do.”
Id. at 2. He also comments on judges’ “professional mystification” to “overcome the laity’s
mistrust” by “developing a mystique that exaggerates not only the [judge’s] skills but also his
disinterest,” id. at 3, and finds that they are reticent about talking frankly about judging, even to
each other. Id. at 6; see also id. at 72. This being so, judges do not like to have the judicial black
robes pulled aside, even a little.
71 I sense that some judges still seem somewhat uncomfortable about discussions of the role of
clerks, or perhaps even the acknowledgment of their existence, to the nonlegal community.
Nevertheless, the role of judicial adjuncts is major and growing, especially in busy legal/judicial
markets, and in the long run, there will be no use in judges trying to hide it from the general public

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and some appellate judges still write all their own opinions with only research help
from subordinates, but many if not most allow their subordinates to research and
draft many or most of the cases that come into chambers, although the judges still
of course keep overall responsibility for the work products and decisions that
result and generally take that responsibility very seriously. The point here is that
this should favor the observance of precedent. Judicial attorneys/clerks normally
will be younger, less experienced, closer to law school and their training in use of
precedent, and less confident to just decide unilaterally what they think the law
should be and go with that, or even if they do, more likely to structure a careful,
precedent-based argument to support that direction in order to justify it to the
judge as well as to the wider world. Such judicial adjuncts are likely to feel the
need for a fig leaf even more than judges do. Even more experienced judicial
attorneys are still clearly subordinates, less confident or able to unilaterally declare
what the law is than a judge, and their conclusions are less final. In one sense, the
position of judicial adjuncts in relation to their judges is something like that of
inexperienced new judges relative to experienced senior judges on the same court
(hesitant, and with a lot to learn); in other ways, the relationship is like that of
judges on a lower court relative to judges on a higher court (subject to reversal).
Thus, in my experience, the use of judicial adjuncts builds a heightened regard for
precedent and an additional layer of review of that precedent into the system.
Moreover, in my own experience, the legal realists’ glib argument that there’s
precedent to cover any situation at a whim is not really true in most
circumstances.72 It may be truer of some cluttered, undisciplined old areas of the
common law, like torts, but in other areas or cases, precedent often points in
relatively clear directions that are hard to resist. If, for example, twenty cases point
in one direction while only one or two point the other direction, one has a harder
or from themselves. If the growing reliance upon judicial adjuncts is truly a bad thing, then it will
have to be confronted, limited, and regulated in a way it has not been in the past; if it is not a bad
thing, then it will have to be accepted as the fact of legal and judicial life that it increasingly is. In
my own, admittedly somewhat limited experience, I have found both federal clerks and state
judicial attorneys to be generally competent, conscientious, and responsible, and certainly not a
disaster for the justice system. For some perceptive commentary on the growing role of judicial
adjuncts in various courts, and how this might or might not be a problem, see, e.g., David J.
Garrow, Acolytes in Arms, 9 GREEN BAG 2D 411 (Summer 2006); Rick A. Swanson & Stephen L.
Wasby, Good Stewards: Law Clerk Influence in State High Courts, 29 JUST. SYS. J. 24 (2008); Robert S.
Thompson, Comment on Professors Karlan’s and Abrams’ Structural Threats to Judicial Independence,
72 S. CAL. L. REV. 559 (1999); Sally J. Kenney, Puppeteers or Agents? What Lazarus’s Closed
Chambers Adds to Our Understanding of Law Clerks at the U.S. Supreme Court, 25 LAW & SOC.
INQUIRY 185 (Winter 2000); JOHN B. OAKLEY & ROBERT S. THOMPSON, LAW CLERKS AND THE
JUDICIAL PROCESS (1980).
72 I agree with Judge Posner’s conclusion that “the realists exaggerated the open area, sometimes
implying that all cases are indeterminate.” POSNER, HOW JUDGES THINK, supra note 6, at 112.

(2011) J. JURIS 79
time constructing a careful, precedent-based argument going the other direction.
Legal reasoning courses may train attorneys to find one favorable case, focus on it,
and say it controls the whole decision (while softpedaling countervailing
authority), but I have not found judges or judicial attorneys to operate that way.
To determine what the relevant law is, they tend to look carefully at a number of
neighboring cases—often even if such cases were not mentioned in the briefs—
and if these are too many (or too hard) to distinguish, they usually will not follow
an outlier.
Precedent also may affect the aggressiveness of decisions even when it does not
determine their valence. Social science studies seemingly tend to focus on valence
(the most obvious and quantifiable measurement of outcome, up or down) rather
than how far-reaching the decision is. Even if ideology were determining
outcomes, it might be that the thicket of countervailing precedents weakens the
opinion in question over what pure ideology might have wished—exerting a
braking action. This likely would be difficult to study by traditional quantitative
analytical techniques and would instead require looking at each case with a sense
of how constrained the language is relative to the standard of pure unconstrained
ideology. At any rate, precedent may have significant but subtle impacts that are
hard to measure.
For all these objective or subjective reasons, I personally agree with the camp that
holds that precedent matters quite substantially to judicial decision-making.73
From experience, I also find that there are strong practical reasons favoring
precedent—reasons that only someone who has worked at length in a court might
really understand.
One goal that judges and judicial adjuncts share, a goal that Judge Posner has
described repeatedly and convincingly, is efficiency in the face of time and
resource constraints.74 Although no one aspect of precedent is sufficient alone to
justify or explain the existence of the doctrine, in my experience, the efficiency
73 In the interest of full disclosure, I should probably note that I am also not quite as impressed
with number-crunching studies of the judiciary as some of the more avid number-crunchers are.
Judge Posner, who is more favorable toward quantitative analysis, nevertheless points out how
“many judicial decisions are made under conditions of uncertainty, precluding quantification of the
relevant variables.” POSNER, HOW JUDGES THINK, supra note 6, at 109, see also id. at 148. For some
informed, insightful commentary on both the strengths and shortcomings of applying quantitative
analysis to judicial opinions, see generally Deborah R. Hensler, Beyond Prosletyzing: Some
Thoughts on Empirical Research on the Law (unpublished manuscript, on file with the author);
Deborah R. Hensler, Researching Civil Justice: Problems and Pitfalls, 51 LAW & CONTEMP. PROBS. 55
(1988). See also Gerhardt, supra note 8, at 1749-52.
74 See, e.g., POSNER, HOW JUDGES THINK, supra note 6, at 145.

(2011) J. JURIS 80
factor is a powerful practical reason that should not be underemphasized. For
whatever judges are doing in theory, in actuality, they are deciding cases—lots of
them.75 Courts are relatively large bureaucracies with many workers engaged in
processing an unending—and usually steadily growing—stream of cases. The time
of judges and judicial adjuncts is not unlimited, and the constitutional status of
courts makes them relatively difficult to expand and unable to expand themselves
unilaterally. Judges facing increasingly crowded dockets have no choice but to be
concerned with efficiency and expeditiousness.76 Following precedents
presumably “takes less time and effort than revisiting questions” and deciding
them from the ground up whenever they reappear.77 As Lindquist and Cross
observe, “The system is structurally ideal for judges; matters on which a judge’s
preference intensity is relatively low may be quickly resolved in accordance with
existing precedent, while matters about which the judge cares deeply can be
analyzed more thoroughly and resolved by setting new precedents, to be followed
by future judges.”78
My own experience is in keeping with Lindquist and Cross’ analysis. For me, as
for other judicial officers and adjuncts, precedent offered a convenient way not to
think about certain issues. Lest this statement sound flippant, cavalier, or
irresponsible, let me explain. In the case-processing business that judges are in, it
is dangerous to devote too much time and attention to any one case, or too much
time to any one issue in any one case, among the many cases and issues one must
process in a timely way to keep on top of the docket and have cases ready before
oral arguments. As Judge Posner observes, judges, unlike legal academicians, do
not have limitless time in which to consider a case and get it just right;79 to do so
would be, inevitably, to slight the many other cases on the docket that also need
and deserve timely resolution. Personal preferences aside, I think I was like other
judicial staff in welcoming clear authority that would let me resolve an issue
relatively quickly, painlessly, and confidently, so that I could move on to consider
other issues. This was especially so when the particular issue was a relatively
75 Judge Posner notes that law, for judges, is “the activity of deciding cases,” adding, “The duty to
decide is primary.” Posner, Reasoning by Analogy, supra note 19, at 770.
76 See, e.g., Wald, supra note 6, at 237 (“The size and complexity of our docket only rarely affords
the liberty of ideological musing[.]”); Richard A. Posner, The Role of the Judge in the Twenty-First
Century, 86 BOSTON U. L. REV. 1049, 1050 (2006) (noting strain on federal appellate courts if
caseloads continue to grow, and difficulty of expanding appellate courts); KLEIN, supra note 9, at
17-18 (noting sharpening time constraints on federal appellate judges); Frank M. Coffin & Robert
A. Katzmann, Steps Towards Optimal Judicial Workways: Perspectives from the Federal Bench, 59 N.Y.U.
ANN. SURV. AM L. 377, 385 (2003).
77 Lindquist and Cross, supra note 1, 1165-66.
78 Id. at 1166.
79 Posner, The Role of the Judge in the Twenty-First Century, supra note 66, at 1054.

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peripheral one, or the subject of a relatively weak argument. There are few limits
on the numbers of issues attorneys may raise in briefs, so they tend to throw in
the kitchen sink, raising numerous minor issues along with major ones.
Presumably to keep under their word limits, attorneys often mention the more
minor issues briefly and somewhat elliptically, which can make them harder rather
than easier for the court to consider, because judges and judicial attorneys, being
conscientious, generally take the time to try to figure out and pay respect to each
argument and subargument, even those that pretty clearly appear to be junk
arguments. All too often, I found briefs to be poorly written and organized and
remarkably unhelpful in general—meaning that I had to do the work the attorney
was supposed to have done.80 I personally found nothing more annoying than an
apparently minor issue or side argument that took an undue amount of time and
kept me from turning my attention to weightier questions that needed careful
consideration and resolution. Clear precedent on an issue, where it existed, was an
especially welcome friend for rejecting such nuisance arguments.
In short, to get back to the somewhat flippant, sassy title of this article, precedent
gives (and is supposed to give, and it is necessary that it or something else gives)
judges the opportunity not to think about each little issue that comes in the
chambers door—or at least not think as long or as searchingly as otherwise might
be required.81 It is supposed to be a legitimate shortcut, resting on the work and
wisdom of earlier courts and judges in considering and resolving the same or
similar issues. It keeps courts from being in the position of Hobbes’ idiot, seeing a
80 According to David Klein, a good many federal appellate judges agree. See KLEIN, supra note 9,
at 58 (citing judges reporting occasionally missing crucial authorities because of inadequate briefs
and that “The briefs do a miserable job,” “The worst thing about judging is the low quality of the
lawyers,” and “Briefs are very, very unreliable. The quality of appellate advocacy, I think, is
declining. More and more lawyers write poorly.”). See also Swanson & Wasby, supra note 71, at 33-
34 (noting frequency with which lawyers fail to bring crucial facts or points of law to state high
courts’ attention). Of course, Klein’s federal appellate judges likely have it easy on that score
compared to state appellate judges, given that federal courts are more paper-intensive at both the
trial and appellate levels, and the average level of attorney performance is generally conceded to be
higher in federal than in state courts. Thus, whatever problems federal judges report regarding
briefs and attorneys are likely to be significantly worse in state courts. That the attorney culture in
state courts is typically more oral and less written than in federal courts also may impact the quality
of state court briefs. I recall when I was an extern in federal district court, and a very well-known,
successful local criminal attorney who usually practiced in state courts came to our court to plead
against extradition of a client. He frankly had no legitimate arguments anyway, but his briefs were
so poor that the clerks laughed at them and showed them to us externs as examples of what not to
do in federal court. The attorney remained impressive orally and on his feet, though, even as his
motions were denied.
81 The title is, of course, a riff on Judge Posner’s fine book on judicial process, HOW JUDGES
THINK, supra note 6. It also derives from legal realist Max Radin’s 1925 article, The Theory of Judicial
Decision, or How Judges Think, 11 A.B.A. J. 357.

(2011) J. JURIS 82
parade of similar phenomena but counting “one” each time one passes and
treating it as entirely new and unique because of an inability to recognize the
similarity.
But this takes us back to the issues that Schauer and others have addressed. My
efficiency and confidence in rejecting or accepting an argument based upon
precedent presumed, as judicial staff must, that the precedent was good, and so
relied on the earlier courts that had created and transmitted the precedent to me
across the years. Though most of the opinions I drafted were, like most judicial
opinions, unpublished, they nevertheless helped to perpetuate and reinforce the
precedent in question, particularly given that judicial staff using online legal
research databases now can (and do) consult unpublished as well as published
authorities for ideas about how to handle similar cases.
So, what if the precedent I relied on was unsound?
In the (many) pages that follow, I discuss an example of unsound precedent taking
root and entrenching itself deeper and deeper within a jurisdiction, with new,
reaffirming precedent piling itself high atop the originating and discovering
decisions and covering their tracks until it became virtually impossible to detect
their unsoundness—primarily through a process of judges working in good faith
and reliance upon past courts as I did. Notably, the particular example is one
where the precedent was applied mostly to side- or throwaway arguments that
courts wished to address quickly. Although this example by no means gives the
whole story of the (mis)use of precedent, I contend that it characterizes all too
much of the use of precedent, and helps to build fundamental flaws into our
common law system.
The testing ground for creation and transmission of precedent that is examined in
this article involves the Illinois state courts’ doctrine of antagonistic defenses—
Illinois’ version of a doctrine that exists in nearly all American state or federal
jurisdictions.82 The doctrine goes by various alternate names in different
jurisdictions: irreconcilable defenses, mutually antagonistic defenses, mutually
exclusive defenses. Some jurisdictions distinguish between higher forms of
antagonism by labeling them mutually antagonistic or mutually exclusive as against
merely antagonistic; Illinois does not. Many states and most federal circuits
borrowed their versions of the doctrine from one of the three federal appellate
circuits that spontaneously originated iterations of the doctrine during the 1960s
and ’70s, but Illinois’ version is home-grown, dates back a century or more, and
82 See generally Wade R. Habeeb, Annotation, Antagonistic Defenses as Ground for Separate Trials of
Codefendants in Criminal Cases, 82 A.L.R. 3d 245 (2005).

(2011) J. JURIS 83
was (seemingly) little influenced by decisions in other jurisdictions. The federal
part of this story was discussed at excessive length elsewhere;83 the Illinois part of
this story is discussed at excessive length in the pages that follow.
In whatever version, the basic idea of the doctrine is that although defendants
indicted jointly for the same criminal transaction normally will be tried jointly, the
trial court must try them separately if their defenses are so antagonistic that one or
more defendant would suffer prejudice from a joint trial.84 Perhaps the classic
definition of sufficient antagonism to require severance of trials in the federal
system is when for the jury to believe one defendant, it must convict the other;85
but that is not the only definition in federal courts or state courts, where various
alternate definitions exist, including when defenses are irreconcilable and the
conflict may lead the jury to infer that both defendants are guilty;86 when
defendants take the stand to accuse their codefendants and exculpate
themselves;87 when defendants accuse each other, regardless of whether they take
the stand to do so;88 and so on. A jurisdiction will often have more than one
definition, sometimes contradicting each other. Although cases of true antagonism
requiring severance should be very rare and fact-specific, as courts have observed,
the claim of such antagonism has become a standard ploy that criminal defense
attorneys frequently raise in cases with multiple defendants.
Another point that nearly all the different versions have in common is that, based
on long and careful study of the doctrine’s development in most federal and state
jurisdictions, it is my considered opinion that the doctrine of antagonistic defenses
is, in essence, a “junk” doctrine in nearly every, if not every, jurisdiction. That is,
in most jurisdictions, it entered the case law, spontaneously or by importation,
without a proper holding or even proper consideration of what the supposed rule
meant, but then took on a life of its own and propagated numerous progeny that
hide its questionable origins and lend it an undeserved air of legitimacy,
inevitability, and long pedigree. Thus, the doctrine of antagonistic defenses,
though not perhaps terribly interesting in itself, presents a fascinating case study
of the theories and processes of precedent and stare decisis gone haywire and
seemingly unable to correct themselves. I believe I have demonstrated that with
83 See Dewey, supra note 58. The D.C., 5th, and 7th Circuits were the ones that developed the most
influential versions of the doctrine. Id. at 170-71.
84 See id. at 151-52. A full list of the relatively limited scholarly literature on the topic may be found
in id. at 153 n.17. See also Habeeb, supra note 81 (covering state and federal jurisdictions).
85 See Dewey, supra note 58, at 171, 176-80.
86 See id. at 170-76.
87 See, e.g., People v. Braune, 363 Ill. 551, 2 N.E.2d 839 (1936).
88 See, e.g., People v. Daugherty, 102 Ill.2d 533, 468 N.E.2d 969 (1984).

(2011) J. JURIS 84
regard to the federal circuits, particularly by showing how some federal circuits
became so entangled in their own confused versions of the doctrine that they have
been unable to discard them even after the United States Supreme Court told
them to do so.89 I believe that I could demonstrate that with regard to most states,
with the exception of a handful of mostly low-population states that never
particularly developed a doctrine of antagonistic defenses, most notably West
Virginia. And I believe that I will demonstrate that to readers regarding the state
of Illinois in the pages that follow.
American legal scholarship has always been heavily slanted toward federal law, of
course, and law students and professors might be inclined to think, “Who cares
about state law, particularly a state I don’t live in?”90 However, just as scholars of
precedent fairly recently realized that that they had to shift their focus down from
the Supreme Court to lower federal courts because that’s where the law really is,
the same reasoning applies to state law and state courts with even greater force—
for most people, that’s where the doctrinal law that affects them is created and
enforced, particularly with regard to criminal law and criminal procedure. Others
who care about state law but live outside Illinois might be inclined to snigger at
the Sucker State. They shouldn’t. Generally, their own jurisdictions, federal or
state, haven’t done any better than Illinois did in (mis)handling the doctrine of
antagonistic defenses and have experienced similar problems.
This article is definitely not intended as an attack on Illinois or its courts and
judges, but rather an effort to illuminate what may be systemic and recurrent
problems with judicial process in courts nationwide. To try to help avoid hurt
feelings (since as a former court employee, I know how sensitive judges can be
regarding criticism), I end the story in 1985, hopefully giving most if not all
participants in my story time to exit the stage gracefully one way or another. And
although this story specifically concerns the evolution of a legal doctrine in
Illinois, it generally concerns a much wider problem that goes right to the heart of
the American common law system. For if precedent cannot be created or
transmitted correctly, or adjusted or discarded when it isn’t, then the interwoven
doctrines of precedent and stare decisis can have no legitimacy. The strange career
89 See generally Dewey, supra note 58.
90 When I was working in a federal court, a funny, good-natured law professor who visited the
court reflected on the difference between practicing in state and federal court and described state
courts with a Yiddish word that I don’t remember but that clearly conveyed the idea of “junk,”
“trash,” or “ghetto.” Although that is doubtlessly somewhat harsh and unfair toward most lawyers,
judges, and court staff who work in state courts, there is no question they rank lower in the legal
profession’s hierarchy, and that many law schools and professors correspondingly tend to be
dismissive of state law and courts.

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of the Illinois antagonistic defenses doctrine is a century-long story of precedent
and stare decisis breaking down in at least one area of the law.
Readers also may ask, “Why Illinois?” A disclaimer: I have no particular
connection with the state. After reviewing the doctrinal trajectories of many
different states, I found its to be somewhat longer and more engaging than most.
Its antagonistic defenses doctrine is also of interest in that it is entirely home-
grown, not derived from the federal versions that I have already studied ad
nauseum. Also, the Illinois doctrine got a starring role in Justice Stevens’
concurring opinion in Zafiro v. United States,91 the case in which the Supreme Court
specifically instructed the federal circuits that there is no mandatory automatic
severance rule for antagonistic/irreconcilable/ mutually exclusive defenses—and
were frequently ignored.92 Justice Stevens, in arguing for a narrowing of the
holding in Zafiro,93 cited People v. Braune,94 a 1936 Illinois case that is one of the
most striking, dramatic antagonistic defenses cases from any jurisdiction in any
decade. The strange career of Braune—decided, ignored, forgotten, then suddenly
rediscovered after 40 years—is just one more interesting piece of the strange
career of the Illinois doctrine of antagonistic defenses.
The following account gives the story of the gradual assuming into existence of a
rule nobody ever intended that was neither necessary nor justified.95 It began with
the sporadic appearance of the word “antagonism” or “antagonistic” in contexts
clearly distinct from that of antagonistic defenses, such as joint-representation
cases where the same lawyer or lawyers represented two codefendants with
conflicting interests, or cases regarding the admissibility against a defendant of
incriminating pretrial statements by codefendants, which Illinois courts had
recognized as a problem potentially requiring severance of codefendants already
by 1916, long before Bruton v. United States,96 the United States Supreme Court’s
most powerful statement on that issue. Lawyers later took such statements
regarding antagonism out of context to argue that antagonism in itself required
severance of codefendants. This led later courts to mention the term in
91 506 U.S. 534 (1993).
92 See generally Dewey, supra note 58.
93 506 U.S at 541-45 (Stevens, J., concurring).
94 363 Ill. 551, 2 N.E.2d 839.
95 This explains the other part of the article title, which is a reference to C. Vann Woodward’s
classic study of the origins of racial segregation in America, THE STRANGE CAREER OF JIM CROW
(1955), which describes how a new and unfortunate legal and cultural institution emerged and
gradually took root, then later came to be viewed as natural, inevitable, and eternal. In other words,
memory of segregation’s actual and fairly recent historical origins was quickly lost, and the
unsound new innovation was presumed to have existed from time immemorial.
96 391 U.S. 123 (1968).

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conjunction with severance in later opinions, which in turn reinforced the nascent,
if juridically unfounded, intellectual association between antagonism and
severance.
With time, this relationship had become so unquestioningly assumed that courts
began to state it as a rule. With more time and further summarization and
paraphrasing of what earlier courts had said, the rule transformed into an exclusive
rule: severance may only be had where there are antagonistic defenses. Through a
process of good logic following bad, this in turn led to the recategorization of
incriminating codefendant statements, an independent potential basis for
severance that existed long before there was any talk of antagonistic defenses, as a
subcategory of antagonistic defenses, even if the pretrial statements had no
relationship to the defenses offered. Most opinions offering the antagonistic
defenses rule came to be ones regarding codefendant statements where the rule
was unnecessary and inappropriate, even as other courts went on deciding the
same sorts of codefendant statement issues without ever mentioning antagonism
(presumably because counsel did not raise the issue). A plethora of opinions
stating the antagonistic defenses rule in passing before affirming the trial court
quickly piled high atop the original opinions that made the ambiguous, confused,
or erroneous statements giving rise to the rule, helping to hide its questionable
origins and give it an air of long-established pedigree. Confusion about similar
terms in different contexts also led the misbegotten antagonistic defenses rule to
jump into and contaminate the otherwise separate, unrelated line of cases
regarding joint representation.
Meanwhile, ironically, a 1936 case involving actual antagonistic defenses, and in
which the extreme facts entirely justified severing the codefendants, was ignored
for nearly forty years. That case was rediscovered and brought out of mothballs
right around the same time that a court realized that no previous court had yet
made an appropriate effort to define “antagonism” during the preceding fifty
years that the supposed rule was taking shape. Thereafter, the long-forgotten true
case of antagonistic defenses was misread and misused to help justify the
antagonistic defenses rule that had grown up entirely without it. Although this
story stops in 1985, the confusion persists to the present.
The data set for this century-long longitudinal study of the development of a body
of precedent includes the slightly more than 200 cases that comprise what I refer
to as Illinois’ antagonistic defenses “lineage.”97 This lineage includes every case
that refers to antagonistic defenses, plus some others that do not but were cited as
authority on that point by others that do. The idea was to check for absolutely
97 See Alphabetical Case Index—Illinois Antagonistic Defenses Lineage, infra.

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certain whether there was any holding establishing a legitimate, non-erroneous,
not already previously contaminated basis for the doctrine. I have satisfied myself
that there wasn’t. Hopefully the following lengthy discussion will satisfy the reader
as well.
But, on with the story.
IN THE BEGINNING: EARLY CASES AND THE ABSENCE OF
“ANTAGONISM,” 1876-1925
White v. People (1876),98 the earliest relevant case in the antagonistic defenses
lineage in Illinois jurisprudence, and seemingly the first case to reverse for lack of
severance, said nothing about antagonism and cited no authority. The case hinged
on multiple instructional errors, plus a procedural error based on an improper date
on the death-penalty form.99 White claimed that only he and codefendant Cozens
were present when the victim, Harris, was fatally shot, but White said he did not
participate in the killing and only aided in the coverup afterward, including
concealment of the gun used.100 Cozens made a similar argument.101 The trial
court’s jury instruction said that if the jury found that both defendants were
present at the scene and had used the gun, kept and concealed the gun, and
mutually concealed the fact of the crime, then the jury should find both guilty of
murder—making no allowance for White’s contention that he was merely an
accessory after the fact.102 The White court found “fatal error” in the jury
instructions, requiring reversal.103 The case also involved proto-Bruton problems,
in that evidence competent against only one defendant but very damaging to the
other was admitted, and the court observed, “In such case[s] it is very difficult for
a juror to divest himself, under instructions, from the illegitimate effect of such
evidence upon the party who ought not to be affected thereby.”104 Because the
court already was reversing on other grounds, though, the court concluded, “[I]t is
unnecessary to discuss these questions. This is a case where it is eminently fit that
these plaintiffs in error should have separate trials.”105 The opinion never
mentioned or considered antagonism.
98 81 Ill. 333 (Jan. 1876) (Dickey, J.).
99 Id. at *2.
100 Id. at *3.
101 Id.
102 Id. at *2.
103 Id.
104 Id. at *3.
105 Id.

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Although various other early cases appear repeatedly in Illinois’ antagonistic
defenses lineage—Doyle v. People (1893),106 Spies v. People (1887),107 Johnson v. People
(1859),108 Maton v. People (1854),109 and U.S. v. Marchant (1827)110—they say
nothing about antagonism and only cite the basic rule that severance is at the
discretion of the trial court. Both Doyle and Spies—a major early conspiracy case
arising from the infamous Haymarket Square bombing of 1886 that addressed
severance only in passing—notably added the condition that there must be no
abuse of discretion;111 the earlier cases showed no awareness of any such
qualification.112 The main issue in Doyle concerned a jury instruction that
identified by name codefendant Lafayette Le Masters, the only defendant who
testified at trial, and allowed the jury to consider his interests in the case and his
possible motivations for testifying in weighing his testimony’s credibility.113 Doyle
contended that this drew attention to his failure to testify and improperly singled
out Le Masters from other defendants; the court politely rejected Doyle’s
argument, explaining that Le Masters, as the only testifying defendant, was
situated differently from all the others and that the court was only expressing the
well-established rule that jurors may give testimony such weight as the
circumstances justify.114 In Gillespie v. People (1898),115 a burglary case, the court,
hesitant to derive any rule from White, noted that the White court, “under the very
peculiar circumstances of the case, directed the circuit court to give the parties
separate trials[,]” but observed that “whatever the correct rule may be,” there was
no basis for review absent abuse of discretion, and the court, citing Maton, Johnson,
Spies, and Doyle, found no abuse of discretion.116 Illinois thus ended the nineteenth
century with rudimentary jurisprudence regarding severance, and nothing
concerning antagonistic defenses.
The early twentieth century added little more. The next case in the antagonism
lineage, People v. Gukouski (1911),117 said nothing about antagonism, but cited and
followed Gillespie and Doyle in repeating the basic rule on the trial court’s discretion
106 147 Ill. 394, 35 N.E. 372 (Oct. 26, 1893) (Wilkin, J.).
107 122 Ill. 1, 12 N.E. 865 (Sept. 14, 1887) (Magruder, J.).
108 22 Ill. 314, 1859 WL 6884 (Apr. 1859).
109 15 Ill. 536, 1854 WL 4731 (June 1854).
110 25 U.S. 480, 1827 WL 3037 (Mar. 12, 1827).
111 Doyle, 147 Ill. at 397; Spies, 122 Ill. at 265.
112 Johnson, 22 Ill. 314; Maton, 15 Ill. 536; Marchant, 25 U.S. 480. Justice Joseph Story penned the
Marchant opinion.
113 147 Ill. at 397.
114 Id. at 397-398.
115 176 Ill. 238, 52 N.E. 250 (Oct. 24, 1898) (Cartwright, J.).
116 Id. at 242-243.
117 250 Ill. 231, 95 N.E. 153 (Apr. 19, 1911) (Farmer, J.).

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to sever and finding no abuse of discretion.118 The case involved four Polish co-
defendants, all members of a baker’s union, who conspired to overturn a bakery
wagon and attack the non-union wagon driver during a bakers’ strike.119
During
the attack, the driver was shot and later died.120
The main issue in the case
concerned statements and confessions by each of the four defendants regarding
who did the shooting, with three defendants tending to place the blame on one,
the one shifting blame elsewhere.121
There were questions as to whether
translations of statements from Polish to English were accurate, plus whether the
statements showed intent to murder.122
The court concluded that in a conspiracy
case, conspiracy to join in unlawful attack creates responsibility for the entire
outcome, even if murder was not contemplated.123
The issue of codefendant
statements implicating another defendant was not raised. People v. Covitz,124
an
arson for insurance case at a woolen goods shop, saw two defendants, brothers,
move for separate trials based upon a confession by a codefendant who allegedly
would receive immunity for testifying for the prosecution, and on the
codefendant’s prior arson record and attempt to bribe a prosecutor not to indict
the defendants.125
The court explained that the evidence that tended to show a
conspiracy to commit arson was competent as against all of them.126
The court
repeated the basic severance rule, cited Gillespie, Doyle, and Spies, and found no
abuse of discretion.127
People v. Buckminster (1916),128
another arson for insurance case, did not concern
antagonistic defenses or claim to, but was the source of Illinois’ pre-Bruton rule
regarding codefendant confessions and statements that incriminate another
defendant—what could and should have been an entirely separate strand of case
law that later became entangled with antagonistic defenses. Buckminster’s
codefendant, ironically named Fink, made an extensive pretrial confession
implicating Buckminster129
but later testified at trial and denied making any
confession.130
The trial court admitted Fink’s confession but instructed the jury to
118 Id. at 232-233, 153
119 Id. at 232.
120 Id.
121 Id. at 233-238.
122 Id. at 238-239.
123 Id. at 239-242.
124 262 Ill. 514, 104 N.E. 887 (Feb. 21, 1914) (Farmer, J.).
125 Id. at 521-522.
126 Id. at 547.
127 Id. at 550-551.
128 274 Ill. 435, 113 N.E. 713 (Jun. 22, 1916) (Carter, J.).
129 Id. at 437-442.
130 Id. at 438.

(2011) J. JURIS 90
disregard it as to Buckminster; this was the ruling at issue on appeal.131
The
Buckminster court discussed the existing rules on admitting a codefendant’s
confession as against another defendant, found no Illinois case addressing this
specific situation, but held that the part of Fink’s confession that implicated
Buckminster should have been excluded; admission of that portion was not
harmless error even where there was other strong evidence against Buckminster;
and a limiting instruction could not cure the resulting prejudice.132
The next case to appear in the antagonistic defenses lineage, People v. Bopp
(1917),133
also concerned a separate issue—joint representation of multiple
defendants by the same counsel—that became entangled with antagonistic
defenses nevertheless. In Bopp, four young men in stolen cars, all with prison
records and most on parole, fled after one of them fatally shot an investigating
policeman.134
Defendant McErlane, one of the parolees, was found with the
murder weapon, a .38-caliber revolver, when arrested; defendant Bopp, another
parolee, purchased a .38-caliber revolver and cartridges before the murder and had
the cartridges when arrested.135
Bopp was indicted for murder, McErlane as an
accessory after the fact.136
A codefendant testified that McErlane was driving and
Bopp held the revolver when the shooting occurred.137
At his separate trial, Bopp
had no counsel but said he wished to hire McErlane’s counsel, Williams, and
requested a continuance to raise money for his defense.138
The court, noting the
state’s considerable expense from maintaining the prosecution witnesses, ordered
the trial to proceed and appointed Williams to also represent Bopp.139
Williams
objected that he was unfamiliar with Bopp’s case and defense, and that McErlane
had indicated that he and Bopp had conflicting interests in the case—in particular,
that Bopp claimed McErlane might have fired the fatal shot.140
Williams accepted
his duty to represent Bopp if appointed, but requested a continuance to familiarize
himself with Bopp’s case and defense, particularly given the prosecution’s
intention to seek the death penalty.141
The court, however, ordered the trial to
proceed immediately.142
131 Id. at 442.
132 Id. at 444-447.
133 279 Ill. 184, 116 N.E. 679 (Jun. 1, 1917) (Dunn, J.).
134 Id. at 185-86.
135 Id. at 187, 188.
136 Id. at 186.
137 Id. at 187.
138 Id. at 189.
139 Id.
140 Id. at 189-91.
141 Id. at 190.
142 Id. at 191.

(2011) J. JURIS 91
On appeal, the court held, “It was an abuse of discretion of the court thus to
appoint counsel for the defense without giving him an opportunity for
investigation or even to prepare his case.”143
The court explained,
[T]he court should . . . appoint counsel who have no interest adverse to
the prisoner which would interfere with a fair presentation of his defense,
and time and opportunity should also be given to prepare for such
defense. [Counsel] ask[ed] to be excused on the ground that the interest of
his client (McErlane) in the trial was antagonistic to that of Bopp. The
defenses of these two defendants were not the same. Each was an alibi,
but each was dependent upon different testimony from the other. It might
well be that testimony tending to exculpate one would tend to inculpate
the other. Counsel was not obliged to disclose the facts which had come
to his knowledge in his relation of attorney and could not properly do
so.144
The court faulted the trial court for not accepting Williams’ statement that he
faced a conflict in representing both defendants, for requiring him to disclose the
facts showing inconsistent defenses, for giving him no chance to investigate and
prepare Bopp’s case or prepare an affidavit for a continuance, and for assuming
that his preparation for McErlane’s separate trial “was sufficient preparation for
the trial of Bopp's case.”145
More broadly, Bopp implicitly held that the same
counsel should not represent two or more defendants with conflicting interests.
As such, Bopp is the wellspring of a century’s worth of Illinois case law on joint
representation of criminal defendants. It is also the first Illinois case to use the
word “antagonism” or “antagonistic” in a manner bearing even a remote
relationship to the later rule on severance of defendants with antagonistic
defenses. Obviously Bopp gives no such rule; it says nothing whatsoever about
joint or separate trials, and given that Bopp and McErlane were not tried jointly,
the issue of antagonistic defenses in a joint trial did not and could not arise. Yet
Bopp, with its references to antagonism and, fatefully, to evidence exculpating one
defendant but inculpating another, would later be taken out of the joint
representation context and used to justify Illinois’ supposed rule on antagonistic
defenses.
The next several cases in the lineage concerned joint trials and sometimes also
codefendant statements but said nothing about antagonistic defenses. In People v.
143 Id.
144 Id. at 191.
145 Id. at 192.

(2011) J. JURIS 92
Sobzcak (1918),146
three men held up a seventeen-year-old Chicago bank messenger
as he made his afternoon rounds collecting deposits, then were jointly tried with
Lexow, a “habitual criminal,” who the other defendants alleged had told them that
holding up the young messenger would be “ ‘like taking candy from a baby,’”
which Lexow denied.147
The three were found guilty; Lexow was not.148
On appeal,
the court rejected the defendants’ argument that Lexow’s habitual criminal status
rubbed off on them.149
People v. Temple (1920) involved the burglary and theft of
four tires from an auto shop.150
The appellate court held erroneous the trial court’s
denial of a defendant’s requested instruction that the jury should consider that a
codefendant, nominally a witness for the defense but actually a witness for the
prosecution, turned state’s evidence under a promise of leniency or immunity.151
People v. Lopez (1921) concerned a grocery store robbery that resulted in murder.152
Among other issues on appeal, Lopez claimed error from the admission of a
codefendant’s pretrial statement that Lopez had a gun at the scene of the crime,
and from denial of a motion for a separate trial based upon the same statement.153
The court concluded that Lopez, by not denying the statement when it was made
in his presence, impliedly admitted its truth.154
Regarding severance, the court cited
Covitz for the trial court’s discretion to sever and reiterated that the evidence at
issue was properly admitted.155
People v. Cardinelli (1921) involved the armed robbery of a saloon and the double
murders of the saloon owner and a patron.156
Several young defendants, who
pleaded guilty, made statements implicating Cardinelli, the older alleged ringleader
of a “gang of baby bandits,” and police officers testified regarding these
statements at trial.157
On appeal the court, citing Buckminster, held that Cardinelli
had ultimately admitted nearly all of the codefendants’ allegations, so there was no
error in admitting the statements.158
In People v. Paisley (1921), a father and two
sons operated a bank while knowingly insolvent.159
On appeal, the court briefly
146 286 Ill. 157, 121 N.E. 592 (Dec. 18, 1918) (Carter, J.).
147 Id. at 158-59, 160.
148 Id. at 161.
149 Id.
150 295 Ill. 463, 464, 129 N.E. 85 (Dec. 21, 1920) (Cartwright, C.J.).
151 Id. at 468-470.
152 296 Ill. 438, 439-40, 129 N.E. 791 (Feb. 15, 1921) (Stone, J.).
153 Id. at 447-50, 452-53.
154 Id. at 447, 449.
155 Id. at 452-53.
156 297 Ill. 116, 118-19, 130 N.E. 355 (Feb. 15, 1921) (Thompson, J.).
157 Id. at 118, 125-26.
158 Id. at 126. Cardinelli also cited Bopp regarding an insufficiently precise motion to strike
testimony. Id. at 127.
159 299 Ill. 576, 578-79, 132 N.E. 822 (Oct. 22, 1921) (Thompson, J.).

(2011) J. JURIS 93
rejected the father’s motion for a separate trial, citing Covitz for the basic
discretionary severance rule, Gukouski and Temple for the requirement that a
severance motion set forth sufficient grounds supported by an affidavit, none of
which the father provided.160
People v. Wood (1923) involved the armed robbery of a late-night gambling parlor
that led to murder when the proprietor resisted. 161
Two codefendants made
confessions to police implicating Wood; one codefendant ultimately pleaded guilty
and testified at trial; the other codefendant’s statement was admitted with a
limiting instruction as to Wood.162
Citing Doyle on joint trials; Sobzcak, Covitz, and
Gukouski on discretion to sever; and Paisley on the requirement of a motion with
grounds for a separate trial, the court held that Wood’s severance motion was
insufficient to show an abuse of discretion where the testifying codefendant’s
pretrial confession was not admitted and the other’s was admitted with a limiting
instruction.163
Wood thus ventured into proto-Bruton territory, and it is questionable
whether its holding regarding the curative effect of a jury instruction in the
codefendant statement context would have passed muster under Illinois case law
as it developed soon thereafter—but as with earlier opinions, it addressed
antagonistic defenses not at all.
People v. Carmichael (1924) was, like Bopp, another case of young punks in a stolen
car, one of them with a gun, murdering a police officer.164
After they were caught,
four of the five defendants offered written statements to the police, each one
made out of the presence of the other defendants, which the prosecution offered
in evidence.165
Three statements said Carmichael did the shooting; Carmichael’s
statement said codefendant Shaheen was the shooter and indicated that all
defendants intended to rob a roadhouse near where the shooting occurred.166
Before deliberation, but not when the various statements were admitted in
evidence, the jury was instructed that each statement was admissible only against
the person who made it.167
On appeal, the court cited Buckminster, Temple, and
Cardinelli for the rule that one defendant’s confession is inadmissible against
another unless adopted by the other defendant(s), and again cited Buckminster in
160 Id. at 579-80. The Gukouski court merely mentioned examining the affidavit in that case (250
Ill. 231, 233); the Temple court found an affidavit insufficient and discussed why (295 Ill. 463,
464).
161 306 Ill. 224, 225-226, 137 N.E. 799 (Dec. 19, 1923) (Stone, J.).
162 Id. at 226-27, 229-30.
163 Id. at 229-30.
164 314 Ill. 460, 461-63, 145 N.E. 673 (Dec. 16, 1924) (De Young, J.).
165 Id. at 464.
166 Id.
167 Id. at 465.

(2011) J. JURIS 94
holding that the limiting instruction regarding Carmichael’s confession did not
cure the prejudice to the other defendants.168
Thus, Carmichael got into proto-
Bruton territory but said nothing about antagonistic defenses.
FODDER FOR MISINTERPRETATION: RUPERT (1925) AND
SWEETIN (1927)
People v. Rupert169
would become the first really major building block in the
antagonistic defenses lineage, though it was decided not on that basis but entirely
on mishandling of codefendant statements. Rupert arose from a robbery resulting
in murder involving codefendants Arnold Rupert and Jimmie Dean, two young
African American defendants, who were both found guilty and convicted.170
Rupert received the death penalty; Dean was sentenced to prison for life.171
The (white) murder victim, William Owens, showed he had $20-$30 in cash while
paying for a meal at a saloon, then left shortly before midnight. His brother, at
home not far away, heard a shot fired, then found Owens at his back door
claiming “that two colored men had attacked him and tried to hold him up; that
one held him and the little short fellow shot him.”172
Owens died the following
day.173
Both Rupert and Dean had been in the saloon when Owens was there.
Dean left after Owens did; Rupert claimed to have been at the saloon when the
shot was fired.174
Rupert and Dean were both arrested the day after the victim
died, each made a separate signed statement to police plus additional statements
paralleling their signed statements, and both were tried together with separate
court-appointed counsel.175
The opinion recounts, “Before the trial Rupert made a motion for a separate trial
on the ground that all the evidence which would be produced by the people would
not be applicable to him and Jimmie Dean; that Dean had made a statement to the
police, and so far as the statement implicated Rupert, he would be unable to have
a fair trial if jointly tried with Dean; that Rupert had also made a statement in
regard to the crime to the police officers incriminating Dean. Rupert further stated
to the court in his motion that if these statements were introduced in evidence
168 Id.
169 336 Ill. 38, 146 N.E. 456 (Feb. 17, 1925) (per curiam).
170 Id. at 39, 456.
171 Id.
172 Id. at 39-40, 456-57.
173 Id. at 40, 457.
174 Id.
175 Id. at 40, 42, 457, 458.

(2011) J. JURIS 95
neither of the defendants would be able to procure a fair trial.”176
The statements
themselves were not then before the court, and the court denied Rupert’s
motion.177
At trial, the prosecution introduced both statements in evidence, and each
defendant objected to his codefendant’s statement but was overruled.178
Dean’s
statement alleged that he and Rupert left the saloon around midnight, following a
man (Owens).179
Dean knew Rupert intended to pull a stick-up.180
Dean stopped
walking, but Rupert continued toward the man. From about twenty feet away,
Dean heard a shot, then saw Rupert run away. Dean also ran, ultimately back to
the saloon. The next day, he met Rupert, who admitted the shooting.181
Dean also
identified the .38-caliber, nickel-plated Smith & Wesson revolver that police found
as having been in Rupert’s possession.182
For his part, Rupert alleged that Dean had asked him to loan Dean the revolver
because a black man named Charles Yates was trying to kill him.183
Rupert lent
him the gun. The night of the shooting, Dean left the saloon while Rupert stayed
there. An hour later, a shot was heard outside. The next day, Dean met Rupert
and said he had something to tell him that nobody else could hear.184
Dean
confessed to the shooting after the other guy “made a gun play, and Dean had to
get him.” Dean didn’t know whether he had killed the man, but knew he’d hit him
before they both ran away. He returned the gun to Rupert. Rupert said the gun
belonged to the saloon owner, who did not know Rupert had taken the weapon.185
The saloon owner testified that Rupert and Dean were both at the saloon before
the shooting, that both were gone when the shooting occurred, that Rupert
reappeared first, Dean later.186
The owner acknowledged that the gun was his, that
Rupert had worked for him, and that both Rupert and Dean knew where he kept
it.187
The saloon owner stated, over defense objections, that Rupert said he had
given the gun to Dean for protection against Yates, that Rupert said Dean had
176 Id. at 40, 457.
177 Id.
178 Id.
179 Id. at 40-41, 457.
180 Id. at 41, 457.
181 Id.
182 Id.
183 Id.
184 Id. at 42, 457.
185 Id.
186 Id. at 42-43, 458.
187 Id. at 43, 458.

(2011) J. JURIS 96
told him he shot the murder victim, and that the revolver was freshly discharged
when Rupert returned it.188
That, basically, was the sum of the evidence in the case, aside from testimony of
other witnesses who were there when the defendants gave their statements. Both
defendants took the stand to testify in keeping with their statements, and each
objected to the other defendant’s incriminating testimony but were overruled.189
The Rupert court rejected the State’s argument on appeal that separate trials are at
the discretion of the trial court, observing, “It cannot be a matter of serious doubt
that both defendants in this case were very much prejudiced by the fact that they
did not have separate trials. The only incriminating evidence in the case against the
defendants is to be found in the statement of the one against the other.”190
Noting
that the State characterized each defendant’s statement as a voluntary
“confession,” hence admissible, the court distinguished between confessions and
self-exonerating statements, repeating the venerable rule from an earlier Illinois
case, “‘No man can confess for any one but himself.’”191
The court remarked that
the People had the “alleged confessions” and “well knew their contents and yet
resisted the motion, necessarily knowing that they would rest almost their entire
case as to each defendant upon the declaration of the other. They thereby
deliberately led the court into error in overruling this motion.”192
The court
opined,
In the case of People v. Buckminster, . . . this court laid down the rule that
where one of several defendants jointly indicted has made admissions or
confessions implicating others, a severance should be ordered, unless the
attorney for the state declares that such admissions or confessions will not
be offered in evidence on the trial. It would have been better, as a matter
of precaution, if Rupert had set forth in his motion the character or nature
of the admission and confession of his codefendant, Dean, but the
information was in the hands of the people, and the court should have
taken the precaution to ascertain the nature of the incriminating evidence,
or have taken the statement of Rupert as true that the alleged confession
of Dean incriminated Rupert. This error was so serious that we must hold
it was reversible error to overrule the motion for a severance.193
188 Id.
189 Id.
190 Id. at 44, 458.
191 Id.
192 Id. at 44-45, 458.
193 Id. at 45, 459.

(2011) J. JURIS 97
The court added,
The [trial] court also committed very serious error in admitting the alleged
confession of each defendant against the other. The objections were very
specific and covered every ground necessary for the protection of the
defendants. The court did not even limit, either in its rulings or in its instructions,
the declarations of either defendant to the one making them. It is argued
that both defendants waived or cured this error by going on the witness
stand and testifying to the same facts, in substance, alleged in their
declarations. . . . Dean testified first, and Rupert had no alternative except
to rest his case on the improperly admitted declaration of himself,
counteracted by the improper declaration of Dean and Dean's testimony
on the witness stand implicating Rupert, or take the witness stand himself.
The defendants were antagonistic to each other from the time they were arrested, and, as
appears from the record, counsel for neither of them was able to protect his client against
the statement of the other, which the court, over their objections, had improperly admitted
in evidence. It is so manifest that the defendants have not had a fair trial that
we are not disposed to consider the fact that they went on the witness
stand and testified in their own behalf, as off-setting the errors committed
against them, or to hold that they waived the errors committed against
them by testifying.194
The Rupert court thus considered the whole situation primarily as a violation of the
Buckminster rule that a defendant’s statement or confession implicating a
codefendant requires either exclusion of that part of the statement from evidence
or separate trials. The court’s reasoning obviously concerned the codefendants’
statements, not antagonistic defenses. Although the court remarked how the
“defendants were antagonistic to each other from the time they were arrested,”
that is the only mention of antagonism in the whole opinion, followed shortly by
the observation that defense counsel were unable to protect their respective clients
from codefendants’ statements, amidst a prolonged wider discussion of how the trial
court erred by admitting the codefendants’ statements and by failing to sever the
trials based upon the statements. The court’s declaration that there could be little
doubt that both defendants were prejudiced by their joint trial, followed by, “The
only incriminating evidence in the case against the defendants is to be found in the
statement of the one against the other[,]” again focuses on the mishandled
statements, not on antagonism in general. In short, Rupert was decided solely on
the statements. If Rupert’s facts implicitly raised, or could have raised, the issue of
antagonistic defenses, the holding clearly did not.
194 Id. at 45-46, 458-59 (italics added).

(2011) J. JURIS 98
In People v. Sweetin,195
the next major building block, 32-year-old Elsie Sweetin was
tried for the murder of her 41-year-old husband, Wilford Sweetin.196
She and
Wilford had been parishioners of the Methodist church of Ina, Illinois, where
Lawrence M. Hight was pastor.197
In July 1924, the Sweetins visited a neighboring
town, where they had ice cream. Wilford thereafter became violently ill, with
vomiting and severe stomach pain. Local doctors treated him for ptomaine
poisoning. Over the next eleven days, he would appear to improve, then worsen
again. He died at the end of July 1924. At a post-mortem, his doctors concluded
that he died of cirrhosis of the liver, for which he had been treated previously.198
There was gossip in the town regarding Elsie Sweetin and Pastor Hight, however.
In mid-September 1924, Hight’s wife died, apparently from ptomaine poisoning.199
Six days later, Wilford’s body was dug up, and tissue samples were sent to a
forensic chemist in Chicago.200
The chemist found sufficient arsenic to cause
death.201
That same day, local law enforcement officials in Ina visited the home of
Pastor Hight, found a can of arsenic, and arrested and jailed him.202
The
“loquacious” Hight confessed and implicated Elsie Sweetin.203
At around five o’clock on the evening of September 22, 1924, local officials,
acting without a warrant, took Sweetin into custody and brought her to the jail.204
Sweetin, who had been sick for days, was examined by a physician who was also
deputy sheriff, who prescribed her medicine that was administered to her through
the night by another deputy sheriff.205
She was given supper, then was
questioned by the state's attorney and a newspaper reporter until about
midnight, when she was taken to the sheriff's office in the courthouse,
where, in her weakened condition, she was subjected to questions by
reporters and officials until about 4 o'clock a. m., at which time, by
direction of the state's attorney, Hight was brought from the county jail
and placed in the room with her, and apparently they were left alone for a
considerable time, although the officers and newspaper reporters were
195 325 Ill. 245, 156 N.E. 354 (Apr. 20, 1927) (Heard, J.)
196 Id. at 246, 355.
197 Id.
198 Id.
199 Id.
200 Id. at 246-47, 355.
201 Id.
202 Id. at 247, 355.
203 Id.
204 Id.
205 Id.

(2011) J. JURIS 99
listening in. Up to this time she had maintained her innocence of any
complicity in the murder of her husband. She testified, and it is not
contradicted, that Hight informed her that he had confessed the crime,
implicating her, and that a mob was forming, and, unless she made a
confession, or some statement that would satisfy the officers, the mob
would take them both out and hang them, but that, if she would make a
statement to satisfy the officers, they would both be removed to places of
safety until the excitement had subsided. Thereupon the state's attorney
was called in, and she made and signed a typewritten statement.206
Sweetin was then given breakfast and taken to a different jail where, between 11
p.m. and midnight, a woman newspaper reporter visited her to get her to repeat
the story she had given to the state’s attorney. Sweetin did so. The following day,
Mr. Sweetin’s father and the state’s attorney and his wife all interviewed Sweetin
around midnight, and she repeated the statement she had made to the state’s
attorney two days before.207
The subsequent trial largely hinged on Hight’s mental state—his defense was
insanity—plus the two codefendants’ confessions and evidence of friendly but not
romantic relations between Sweetin and Hight.208
After hearing preliminary
evidence, the trial court “properly” excluded Sweetin’s original confession as
improperly obtained and non-voluntary; as the Sweetin court noted, a prosecutor
should never try to extract a confession from a defendant by unlawful means.209
The trial court, however, admitted into evidence the two later iterations of
Sweetin’s confession, over her objections.210
Sweetin took the stand and testified
that she was in no way responsible for her husband’s death, her first confession
was influenced by fears of mob violence, she had merely repeated what Hight told
her was necessary for her protection and safety, and her subsequent reiterations of
her confession during the various late-night visits to her jail cell were motivated by
the same fears.211
She was convicted and sentenced to 35 years in prison.212
Citing various earlier cases from Illinois and neighboring states, the Sweetin court
explained that if a “first confession was coerced by intimidation, fear, or other
improper influence,” then subsequent confessions of the same crime
206 Id. at 247-48, 355-56.
207 Id. at 248, 356.
208 Id. at 247, 355.
209 Id. at 248, 356.
210 Id. at 248-49, 356.
211 Id. at 249, 356.
212 Id. at 246, 355.

(2011) J. JURIS 100
presumptively resulted from the same influence.213
The court held that the
evidence at hand failed to prove the contrary, making admission of Sweetin’s
subsequent confessions erroneous.214
The court then described Sweetin’s motion
and affidavit for severance:
Prior to the trial plaintiff in error filed her motion for a separate trial,
supported by her affidavit, in which she stated, among other things, that her
defense and that of Hight were antagonistic to each other, and that much of the
evidence against him would be incompetent and prejudicial as to her; that
he had made false confessions to the state's attorney, newspaper men, and
others, out of her presence, implicating her; that Hight, while in jail at
Nashville, was tried by a number of bishops and ministers of his church, at
which time he made another false confession and accusation against her; . .
. and that he had made various statements to the bishops, presiding elders,
and other Methodist officials implicating her, and that the names of these
persons were indorsed upon the indictment as witnesses; that, since his
arrest, Hight, to get the favor of the State's attorney and other officials,
became their willing tool, and aided them in every way in his power to
procure evidence against her, and that, as the tool of these officials, he was
at one time taken to her room in the jail, where he made threats, used
persuasion, and represented to her that there was a mob gathering, and
that she would be hanged unless she made some statement to induce the
officers to remove them from the county; that, while she was confined in
jail at Salem, Hight, intending to injure and entrap her, wrote letters
addressed to her which were brought to her by the state's attorney; that
she was not present at any of the confessions made by Hight; that such
confessions would be competent as to Hight, but would be incompetent
and prejudicial as to her.215
213 Id. at 249, 356.
214 Id.
215 Id. at 250, 356-57 (italics added). The opinion included a sample of Hight’s “many confessions
and statements, both oral and written, in which he implicated [Sweetin]”—a statement Hight
signed after a higher-ranking regional Methodist church official visited Hight in jail and urged him
to “get himself right with God”:
“‘Of my own free will I make the following statements to Rev. C. C. Hall: Mrs. Sweetin and I fell
in love, and we intended to get married. Made arrangements to put husband, Wilford Sweetin, and
my wife, Anna Hight, out of the way. She asked me what to get, and I got arsenic. The arsenic I
bought in Benton July 22 I gave to Mrs. Elsie Sweetin. I never gave Sweetin any arsenic. I said I
did because I didn't want to give her away. And after his death it was up to me to put my wife
away, according to agreement. I didn't intend to do anything until we moved, but after she got sick
I gave her arsenic.’” Id. at 251, 357.

(2011) J. JURIS 101
For her part, Sweetin denied all Hight’s allegations and testified that although
Hight made romantic advances toward her, she spurned these but did not tell
others on account of his position in the community and friendship with her
family.216
Citing Carmichael and an earlier English case, the court explained that the trial
court’s limiting instruction that Hight’s confessions were inadmissible as against
Sweetin “could by no possibility eradicate the testimony from the minds of the
jury” or cure the resulting prejudice.217
Citing Buckminster, Rupert, Carmichael, White,
and English and Canadian authorities, the court continued, “To obviate the evils
arising from the possibility of the jury being misled by the confessions of a
codefendant, the rule is general that, where one of several defendants jointly
indicted has made admissions or confessions implicating others, a severance
should be ordered, unless the attorney for the State declares that such admissions
or confessions will not be offered in evidence on the trial. . . . The Constitution
guarantees to every person accused of crime, whether innocent or guilty, a fair and
impartial trial, and no person should be condemned to penal servitude who has
been deprived, over his objection, of such trial upon evidence competent against
him.”218
The court concluded, “[Sweetin] asked for a separate trial, and, for the
reasons stated in her affidavit, it should have been accorded her.”219
Thus, in considering the need for separate trials, the Sweetin court was clearly
preoccupied with codefendant statements, plus related issues such as limiting
instructions regarding those statements and the competence of the statements as
to different defendants. The holding says nothing about antagonistic defenses.
The entire opinion says almost nothing about them, either, except for the brief
mention of one of the grounds for Sweetin’s severance motion—“that her defense
and that of Hight were antagonistic to each other.” It could perhaps be argued,
through a leap of logic, that the court’s loose concluding statement—that Sweetin
“asked for a separate trial, and, for the reasons stated in her affidavit, it should
have been accorded her”—incorporated the antagonistic defenses ground in
Sweetin’s motion. Even under that expansive reasoning, however, the court’s
sweeping statement considered all of Sweetin’s reasons together, not in isolation,
so there is no reasonable way to argue that Sweetin held that antagonistic defenses,
alone, justify severance. But later courts would miss that nuance.
216 Id.
217 Id.
218 Id.
219 Id. at 253, 357.

(2011) J. JURIS 102
NO ‘ANTAGONISM,’ BUT SLIGHT INKLINGS EMERGE:
ADDITIONAL CASES, 1927-1930
On the same day Sweetin was decided, the Illinois Supreme Court decided People v.
Allison,220
a case involving two codefendants charged with larceny of an
automobile. Allison is the first Illinois case, or at least the first in the identifiable
antagonism-severance lineage, to involve one of the classic situations of
antagonistic defenses—where one defendant, or the other, or both, must be guilty,
but each claims innocence—in the absence of incriminating pretrial statements or
confessions by codefendants. Strikingly, in light of later assumptions regarding
severance of antagonistic defenses, counsel never raised the issue of antagonism,
and the Allison court found no problem with the defendants’ antagonism and
affirmed.
Homer Morville and James Allison were questioned by a police officer who saw
them driving a stolen car at night with the headlights off and the taillight covered
with a cloth.221
The two men said they both owned the car, jointly.222
Morville gave
the officer a false name and a false phone number to call, then ran away while the
officer was making the call.223
Allison was taken to jail, where he gave a false
name, but a police officer found his identification cards, with his real name, in his
sock.224
At trial, each defendant testified that he had nothing to do with stealing
the car and never saw the car before his codefendant appeared with it and gave
him a ride the night they were questioned, days after the theft.225
“Allison was
permitted to be cross-examined by Morville’s counsel” after the prosecutor was
finished with Allison;226
Allison’s counsel apparently did not seek to cross-examine
Morville. Morville presented additional testimony from his employer and the
employer’s wife, both of whom testified that Morville was with them on the night
the car was stolen, and Morville’s employment records with the testifying
employer were admitted into evidence without objection.227
The jury found
Allison guilty and Morville not guilty.228
On appeal, Allison argued that the trial court erred on four grounds: admitting the
employment records, allowing Morville’s counsel to cross-examine Allison and
220 325 Ill. 578, 156 N.E. 798 (Apr. 20, 1927) (Farmer, J.).
221 Id. at 579-80, 798.
222 Id. at 580, 798.
223 Id. at 580, 798-99.
224 Id. at 580, 799.
225 Id. at 581, 799.
226 Id.
227 Id. at 582-83, 799.
228 Id. at 579, 798.

(2011) J. JURIS 103
base the cross-examination on the prosecutor’s cross-examination, allowing
Morville’s counsel to act as a prosecutor of Allison, and giving erroneous
instructions for the State.229
In answering Allison’s contentions, the court focused
primarily on the alleged instructional errors and found none.230
The court also
noted that Allison never objected to admission of the employment records at
trial.231
As to Allison’s arguments regarding Morville’s counsel acting as a second
prosecutor—which later would be one of the standard justifications for a rule
requiring severing of antagonistic defenses both in Illinois and throughout the
United States—the court observed,
In the case at bar Allison and Morville were indicted jointly as principals.
On the trial each of them testified as a witness in his own behalf and each
sought to place the guilt on the other. So far as shown by the record,
neither defendant nor his counsel knew what the other defendant was
going to testify to until each testified on the witness stand. No motion for
a separate trial was made and they were tried jointly. After Allison had
testified and been cross-examined by the state's attorney, Morville's
counsel also cross-examined him, and counsel for Allison say Morville's
counsel usurped the functions of the prosecutor in his cross-examination,
and further say they have been unable to find any case where the
circumstances were similar to those on the trial of this case. It is not
contended the people knew what the attitude of either defendant was to
be on the trial as affecting his guilt or innocence. When Allison testified he
clearly sought to throw the blame of guilty on Morville, and when Morville
took the stand he returned the compliment. It is, of course, possible in any
case where two men are jointly indicted for committing a crime, one of
them may be guilty and one of them may not be guilty. They are
competent witnesses to testify, and where, as here, each tries to show the
other was guilty, and they are represented by different counsel who knew
nothing of what the testimony of the other would be until they heard it
from the witness stand, we do not think that justice or the law requires
that the defendant who claims to be innocent shall not so state on the
witness stand but shall submit to or not contradict the statement of the
other defendant. We cannot say Morville's counsel did not have a right to
cross-examine Allison and attempt to bring out facts which might weaken
or destroy the effect of his testimony and that Allison's counsel did not
have a right to do the same thing with Morville.232
229 Id. at 584, 800.
230 Id. at 584-86, 587-88, 800-801.
231 Id. at 584, 800.
232 Id. at 586-87, 800.

(2011) J. JURIS 104
The court concluded, “It is true, the testimony of each defendant was very
injurious to the other, but they created that situation themselves. It was the court's
duty to see that neither of them was denied any legal right in presenting his
defense and to instruct the jury as to the law.”233
The court held the trial fair,
found no error, and affirmed.234
Thus—keep this in mind for later—Allison involved mutual finger-pointing by
codefendants and cross-examination of a defendant by his codefendant’s counsel,
in a situation where at least one defendant almost certainly had to be guilty. To all
this, the Allison court said: no problem, as long as each defendant has the same
opportunity to testify, cross-examine, and otherwise implicate his codefendant.235
Note also, of course, that there was no motion for severance.
People v. Nusbaum (1927) was a conspiracy and murder case involving several
codefendants, including Eliza Nusbaum, apparently the wife of the victim.236
All
five alleged conspirators originally pleaded not guilty, but three of them later
pleaded guilty and testified for the prosecution at the trial of the other two,
including Nusbaum.237
Apparently before trial, Nusbaum moved for a separate
trial.238
She contended that three conspirators had made confessions to Chicago
police admitting that they conspired with her codefendant to murder the victim,
but these confessions asserted that she was neither present nor participated in the
crime.239
She claimed that she would be prejudiced if she were tried with the other
defendants, and that the only evidence of her participation in any capacity was in
her codefendants’ statements, which were incompetent against her.240
This motion
was denied, and Nusbaum was convicted and sentenced to life in prison; her
codefendant received the death penalty.241
Nusbaum appealed, claiming error in
the denial of severance among other arguments.242
233 Id. at 588, 801-02.
234 Id.
235 Interestingly, this is somewhat similar to the reasoning Judge Posner applied much later in
United States v. Zafiro, 945 F.2d 881, 886 (7th Cir. 1991).
236 326 Ill. 518, 519-21, 158 N.E. 142 (Jun. 22, 1927) (De Young, J.).
237 Id. at 519.
238 Id. at 520.
239 Id.
240 Id. at 520-21.
241 Id. at 520, 521.
242 Id. at 521.

(2011) J. JURIS 105
The appellate court noted that the evidence from the case clearly showed that
Nusbaum was a conspirator, even if not present at the actual murder.243
The court
rejected her arguments on inadmissible codefendant statements because they
tended to show her participation in the conspiracy.244
Regarding Nusbaum’s claim
that she feared her convicted codefendant who extorted money from her for
years, “and that in consequence their defenses were antagonistic and she should
have had a separate trial,” the court observed that her severance motion and
affidavit gave no indication of fear, duress, or a defense based on those grounds
or any other basis to claim antagonism.245
Citing Maton, Johnson, Spies, Doyle,
Gukouski, Covitz, Sobzcak, and Wood, the court repeated the standard rule—“the
denial of a motion for a separate trial will not be reviewed unless there has been a
clear abuse of discretion”—adding, “No definite rule can be laid down as to when
separate trials should be granted upon [a joint] indictment.”246
The court held
there was no abuse or error and affirmed.247
Aside from the brief references in
passing to antagonistic defenses, which were clearly driven by the appellant’s
pleading and indicate, along with Sweetin, that attorneys in the wake of Rupert had
come to have a generalized sense that “antagonistic defenses” was a new magic
word that required severance even if the Illinois courts had never said so, the
Nusbaum court said nothing further about antagonistic defenses and nothing
noteworthy on codefendant statements, and specifically declined to proclaim a
rule on severance.
The next few cases that appear in the antagonistic defenses lineage follow
Nusbaum in merely reiterating the discretionary severance rule, finding no abuse of
discretion, and saying little or nothing about antagonistic defenses. People v.
Corbishly (1927) cited Covitz and Gukouski for the standard rule;248
People v. Birger
(1928) cited Covitz, Gukouski, Gillespie, and Doyle;249
People v. Lawson (1928) cited
Covitz and Birger.250
Corbishly never mentioned antagonism or codefendant
statements. Birger claimed that he and his codefendant’s “defenses were
antagonistic,” a claim thrown in haphazardly among a mixed bag of other
arguments including a warning about codefendant statements.251
The court
answered that no defendant offered any evidence; the prosecution, as promised,
offered no codefendant-incriminating statements; and the codefendants’ opening
243 Id. at 521-22.
244 Id. at 524-25.
245 Id. at 522.
246 Id. at 523.
247 Id. at 523, 528.
248 327 Ill. 312, 335-36, 158 N.E. 732 (Oct. 22, 1927) (Duncan, J.).
249 329 Ill. 352, 367-68, 160 N.E. 564 (Feb. 24, 1928) (De Young, J.).
250 331 Ill. 380, 393, 163 N.E. 149 (Jun. 23, 1928) (Duncan, J.).
251 Birger, 329 Ill. at 367.

(2011) J. JURIS 106
statements included nothing indicating “that the individual defenses were
antagonistic.”252
Thus, the Birger court, responding to Birger’s claim, explicitly only
said that there was no antagonism, and did not say whether this had any
significance; implicitly, it may have indicated agreement that antagonism had some
significance, but not how much, and it mentioned antagonism only in passing,
gave no clear holding, cited no authorities, and stated no rule on the topic.
Similarly, in a brief paragraph the Lawson court stated, “There was no showing . . .
that the defense[s were] antagonistic[,]” then explained why the defenses and
testimony were in harmony.253
By making this observation immediately after its
statement of the general discretionary severance rule, Lawson made it appear more
clearly than in Birger that antagonistic defenses somehow mattered to the
severance decision, but again, no authorities were cited, no rule was given, and it is
impossible to know whether the court was merely rejecting an argument about
antagonistic defenses without crediting it.
The next case in the lineage, People v. Giardiano (1928),254
never mentioned
antagonism, only codefendant statements. Giardiano moved for severance based
upon codefendants’ confessions; the prosecutor promised that any confessions
offered into evidence “would not mention or involve” Giardiano, and he kept his
word.255
The Giardiano court observed, “Hence the rule applied in [Sweetin] and
invoked by the plaintiff in error, that where one of several defendants jointly
indicted has made admissions or confessions implicating codefendants, a
severance should be ordered unless the state's attorney declares that such
admissions or confessions will not be offered in evidence on the trial, has no
application to the instant case.”256
The court then stated the general discretionary
severance rule, citing Birger, Covitz, Gukouski, Gillespie, and Doyle, and found no
abuse of discretion.257
Notably, the court correctly defined the rule from Sweetin as
concerning incriminating codefendants’ statements and confessions, not
antagonistic defenses.
The next case also never mentioned antagonism, and also cited Sweetin, as well as
Rupert, as authority regarding codefendants’ confessions. In People v. Bolton (1930),
Bolton’s codefendant, Johnson, made a confession to police that incriminated
Bolton.258
The trial court denied Bolton’s pretrial motion for a separate trial even
252 Id.
253 Lawson, 331 Ill. at 393.
254 332 Ill. 476, 163 N.E. 798 (Oct. 25, 1928) (De Young, C.J.).
255 Id. at 480.
256 Id. at 480-81.
257 Id. at 481.
258 339 Ill. 225, 227, 171 N.E. 152 (Apr. 17, 1930) (Stone, J.).

(2011) J. JURIS 107
without an objection from the State.259
At trial, the court also denied Bolton’s
request that any reference to him in Johnson’s statement be omitted, so a police
officer testified that Johnson had told him how Bolton took the lead and held the
gun in a stick-up of a Chicago couple.260
Bolton’s counsel then requested, and the
court gave, an instruction that Johnson’s confession was not binding on Bolton.261
The appellate court held that Bolton should have received a separate trial, citing
Sweetin, Rupert, Buckminster, and (curiously) White for the “rule long in effect in this
state” that statements by defendants incriminating codefendants required
severance unless the prosecution agreed to exclude the statements.262
Thus, Bolton,
like Giardiano, concerned codefendant confessions, not antagonistic defenses, and
the Bolton court correctly understood Sweetin and Rupert, like Buckminster, to be
about codefendant confessions.
ORIGINAL SINS: FISHER, PAYNE, LEHNE, AND THE
EMERGENCE OF THE ILLINOIS ANTAGONISTIC DEFENSES
‘RULE,’ 1930-35
Given that earlier opinions correctly identified Sweetin and Rupert as early-day
Bruton cases involving codefendant confessions, while no opinion had stated a rule
on antagonistic defenses (although Birger and Lawson may have drifted dangerously
close), it is striking that the next case in the lineage misread Sweetin to have been
primarily about antagonistic defenses and pushed Illinois case law closer to an
antagonistic defenses severance rule built on air, with no proper foundation in
earlier opinions. People v. Fisher263
was a relatively lengthy, major opinion
consuming more than thirty pages of the Illinois reporter and involving many
issues requiring a detailed recital of facts, in which the severance issue was a
relative sideshow basically comprising only a single paragraph and page.264
The
case involved a heavily armed bank robbery in which a bank guard was killed.265
Five of six indicted robbers were caught, one was tried separately, and the other
four were tried together, with three receiving the death penalty, one sentenced to
life in prison.266
Among the issues the court had to address on appeal were
whether confessions were extracted by beatings or otherwise involuntary,267
whether the jury was improperly controlled or exposed to outside information
259 Id.
260 Id. at 228.
261 Id.
262 Id. at 229.
263 340 Ill. 216, 172 N.E. 743 (Jun. 20, 1930) (Stone, J.).
264 Id. at 226-27.
265 Id. at 219-20.
266 Id. at 219.
267 Id. at 226, 227-232.

(2011) J. JURIS 108
(they were allowed to have a radio in the jury room, for instance),268
and the
admissibility of relatively sophisticated expert testimony on forensics and ballistics
regarding the weapons and rounds that killed the bank guard,269
along with other
alleged evidentiary or instructional errors.270
The Fisher court addressed the severance issue first, noting that “[t]he ground on
which the separate trial was sought was that each of the other defendants had
made a confession implicating Fisher.”271
Fisher contended that his case thus came
within “the rule laid down in [Sweetin] and [Rupert]”272
—indicating that Fisher’s
counsel recognized that both cases concerned codefendant statements. The court
answered, very directly but incorrectly, “In the Sweetin Case the main ground for
the motion was that the defenses of the two defendants were antagonistic. No
such ground is stated in the motion in the instant case.”273
Regarding Rupert, the
court declared, “In the Rupert Case each defendant made a statement in which he
exonerated himself and implicated the other in the crime.”274
The court then
distinguished Rupert because all the Fisher defendants had, in their confessions, not
only implicated each other but implicated themselves, and were substantially in
agreement. The Fisher court cited Birger, Lopez, and Covitz for the general
discretionary severance rule, and Bolton, Buckminster, and a few non-lineage cases
for Illinois’ proto-Bruton rule—that “where a motion for separate trial is made on
the ground of confessions of others implicating the mover, a severance should be
ordered unless the state's attorney declares that the admissions or confessions will
not be offered in evidence on the trial or unless there be eliminated from the
confessions any reference to the codefendant.”275
[This seems to be the first time a
redaction option was added to the Buckminster rule, at least in the antagonistic
defenses lineage.] The court concluded, “This case differs on the facts from any of
the cases above cited. In this case the defenses were not antagonistic, and
confessions were made by each in substance identical with the others[.]”276
268 Id. at 242-48.
269 Id. at 236-42.
270 Defense counsel also contested a variance between the indictment and proof where the
indictment gave the victim as “Martin V. French” when the proof showed his name to be “Martin
B. French,” id. at 234, argued that the prosecutor’s closing remarks were prejudicial, id. at 248, and
claimed insufficient evidence, id. at 248-49.
271 Id. at 226.
272 Id. at 227.
273 Id.
274 Id.
275 Id.
276 Id.

(2011) J. JURIS 109
Thus the Fisher court incorrectly summarized Sweetin as being argued and decided
on antagonistic defenses. It did not mischaracterize Rupert that way—the court
said nothing about antagonism in the Rupert context and appears to have
recognized correctly that Rupert was fundamentally about codefendant
statements—but the distinguishing point it extracted from Rupert, focusing on the
conflict between the two defendants, together with the two references to
antagonism in the opinion, would be used by later courts to summarily define
Rupert, too, as an antagonistic defenses case. Unlike a good many other decisions
that followed, defense counsel could not be blamed for introducing the notion of
antagonism where it did not belong in Fisher; rather, it appears that the Fisher
court, confronting a long, complex, difficult case and opinion, hoped to quickly
and efficiently dispatch a relatively minor issue by briefly and succinctly
summarizing and distinguishing Rupert and Sweetin, two relatively complex cases
that had not yet been analyzed, distilled, and defined. This worthy goal entailed
risks, however, as the Fisher court in its haste got Sweetin plain wrong and defined
Rupert in a manner dangerously open to later misinterpretation. So Fisher was an
important milestone in the development of Illinois’ rule on antagonistic defenses,
and helped to establish a longstanding pattern of courts sweeping a nuisance side-
issue under the rug by using overly brief, excessively succinct, and fundamentally
misleading summaries of complex earlier decisions.
The next two cases in the antagonistic defenses lineage never mentioned or
involved antagonism. People v. Sullivan (1931) involved codefendants’ statements, as
well as the risk of prejudice from the notoriously bad character of one defendant
rubbing off on others.277
The Sullivan court quoted Wood citing Sobczak, Covitz,
Gukouski, and Doyle for the general rule on discretionary severance and quoted
Fisher at length regarding incriminating codefendants’ confessions and how a
motion for severance should be granted unless the prosecutor agrees not to
introduce such a statement in evidence “ ‘or unless there be eliminated from the
confessions any reference to the codefendant.’”278
The prosecutor substituted “the
other person” for “Richard Sullivan” throughout the confession; the Sullivan court
found no error.279
People v. Hotchkiss (1931) involved a defendant’s complaint of
likely prejudice from joint trial with a codefendant who previously had been
convicted of a felony.280
The court cited Fisher, Giardiano, Birger, and Nusbaum on
discretionary severance, Sobzcak on joint trial with an habitual criminal with a prior
felony conviction not requiring severance absent a showing of prejudice.281
277 345 Ill. 87, 99, 177 N.E. 733, 738 (Jun. 18, 1931) (Dunn, J.).
278 Id. at 99-100, 738.
279 Id.
280 347 Ill. 217, 220, 179 N.E. 524, 525 (Dec. 17, 1931) (Orr, J.).
281 Id. at 220-221, 525.

(2011) J. JURIS 110
The next case in the lineage, People v. Rose,282
involved antagonism, but antagonism
of a different sort. In Rose, two African American men held up a carload of five
white boys at gunpoint, then shot and killed a railroad company security officer
when he came to investigate.283
At trial, the court appointed a pair of attorneys to
jointly represent both defendants. The joint counsel moved for separate trials,
submitting affidavits to show that one defendant, Rose, would argue that he was
present and saw his codefendant, Eckford, fire the fatal shot, whereas Eckford
would argue that he was not present. The court denied the motion.284
At trial,
Eckford testified that he was not present; Rose did not testify.285
The Illinois Supreme Court observed,
While the inconsistency of the defense did not appear on the trial for the
reason that Rose did not testify, the situation might well be that that
inconsistency did not appear by reason of the embarrassing situation in
which the attorneys were placed. As stated in their brief, “defendants’
counsel were put to the task of presenting two inconsistent defenses to the
same jury. It could not be done. Counsel followed their best judgment and
put Eckford on the witness stand and did not permit Rose to testify. It
may be that in doing so counsel did not perform their full duty to
defendant Rose.”286
The Rose court quoted at length from Bopp regarding the duty of counsel to have
no interest adverse to a client, including the part where the counsel in Bopp “
‘asked to be excused on the ground that the interest of his client (McErlane) in the
trial was antagonistic to that of Bopp.’”287
The court reversed, concluding, “Every
defendant who is unable to employ counsel for his defense has a right to have an
attorney appointed by the court who can, and will upon the trial, present to the
court and jury the defendant’s full defense, untrammeled by any conflicting
interests of a codefendant.”288
Although the actual reversal was of the trial court’s
denial of Rose’s motion for a severance,289
Rose was, and the court obviously
understood it to be, a case regarding joint representation of multiple defendants
with conflicting interests. The court said nothing about the separate issue of joint
282 348 Ill. 214, 180 N.E. 791 (Apr. 23, 1932) (Heard, J.) (Orr, J. dissenting).
283 Id. at 215.
284 Id. at 216.
285 Id. at 217, 791.
286 Id.
287 Id.
288 Id. at 218, 791.
289 Id.

(2011) J. JURIS 111
trial of antagonistic defendants with separate counsel, and the word “antagonistic”
only arose in the quote from Bopp—the only authority cited in Rose.
Nearly five years after Fisher, however, the Illinois antagonistic defenses “rule”
reemerged in what would become its classic form—a statement of the “rule”
briefly, in passing, in a case in which it did not apply and thus required no holding.
In People v. Payne (1935), a conspiracy case penned by Justice Shaw, six
codefendants were charged with a murder that occurred during an armed
robbery.290
On appeal, Payne contended, inter alia, that codefendant Rich, who
pleaded guilty, testified to “certain acts and conversations” of other codefendants
when Payne was not present, causing prejudice that sufficiently justified his
motion for a separate trial.291
The court explained that Rich’s testimony indicated a
conspiracy of which Payne was a member, so his absence during the conversations
was immaterial.292
Probably no more needed to be said on the topic, but the court,
wishing to neatly and succinctly summarize relevant rules, group-cited Fisher,
Lawson, Birger, Corbishly, Wood, and Gukouski for the general rule on discretionary
severance, adding, “The right to a severance depends upon whether the defense of
one defendant is so antagonistic to the defense of other defendants that a
severance is necessary to assure a fair trial.”293
Justice Shaw apparently drew upon
and extended Fisher’s mischaracterization of Sweetin, plus the ambiguous references
to antagonism in cases such as Lawson and Birger, to abruptly create a new “rule”
without a holding, seemingly unaware that the “rule” was new, actually
unsupported by earlier authorities, and unnecessary for deciding Payne.
Notably, Payne’s sweeping but inaccurate general proclamation on the appropriate
grounds for severance was at least implicitly exclusive. Although in declaring that
the right to severance depends upon antagonistic defenses, it could perhaps be
read to say only that antagonistic defenses are one significant factor among many
other possible factors supporting severance, the easier, more obvious reading is
that antagonistic defenses are the sole, exclusive basis for severance. Later courts
mostly followed the latter interpretation. Also notably, Payne’s formulation of the
“rule” indicated that there are degrees of antagonism, and that severance only was
required where defenses were “so antagonistic” that only separate trials would
assure fairness. The latter part of the rule might not be that helpful in operational
terms, because it says, more or less, that severance is necessary where it’s
necessary; but it does at least establish that only a serious level of antagonism, not
just any antagonism, is required. Later courts would miss that distinction. So
290 359 Ill. 246, 248, 194 N.E. 539 (Feb. 15, 1935) (Shaw, J.).
291 Id. at 253.
292 Id. at 253-54.
293 Id. at 253.

(2011) J. JURIS 112
Justice Shaw’s well-intended effort to helpfully clarify an area of law backfired, and
instead set loose a process that would breed complications and confusion down
the road. For although the Payne court’s new “rule” might have been wrong and
juridically unfounded, and did not precisely define antagonism or the extent of
antagonism necessary to require separate trials, its language was, or appeared to
be, quite simple and straightforward—just the sort of thing courts love, especially
when they are trying to sweep aside a nuisance issue as quickly and efficiently as
possible. As such, Payne’s language would take deep root in Illinois jurisprudence
over the next half century, as many later courts joined Justice Shaw in assuming
the antagonism-severance rule into existence.
Less than a week after Payne, Justice Shaw offered another major opinion
concerning antagonistic defenses that succeeded in mischaracterizing Sweetin,
Rupert, and Rose while pushing Illinois further along toward the “rule” that Payne
had assumed into existence. In People v. Lehne, a wife and her lover, Lehne,
allegedly conspired to kill her husband, whom Lehne shot one night while he
slept.294
Both wife and Lehne made extensive statements to police after their arrest
regarding the planning of the murder, statements that were parallel overall but
contradicted each other on particular points.295
In particular, the wife denied
intending that her lover shoot her husband and claimed that Lehne did all the
planning.296
The wife made her statement outside the presence of Lehne, but after
it was sworn and notarized, Lehne was brought in and the statement was read to
him as he followed along with a typed transcript, making pencil marks in eight
places where his story differed.297
Lehne then dictated his statement to police in
the wife’s presence, with the wife denying portions of his statement.298
At trial,
both defendants testified on their own behalf as well as introducing witnesses.299
The wife and Lehne both objected to the introduction of his statement, and
Lehne also objected to the introduction of the wife’s statement.300
The wife’s
objection was based on a claim that she had not acquiesced to Lehne’s statement
but had substantially denied it all.301
The trial court admitted Lehne’s statement
but required the deletion of various portions where the wife specifically denied
294 359 Ill. 631, 633, 195 N.E. 468 (Feb. 21, 1935) (Shaw, J.).
295 Id. at 633-643, 470-474.
296 Id.
297 Id. at 636, 471.
298 Id. at 637-643, 471-474.
299 Id. at 643-644, 474.
300 Id. at 644, 474.
301 Id.

(2011) J. JURIS 113
what Lehne said.302
The jury convicted both defendants of murder and selected
the death penalty for both.303
On appeal, the Lehne court noted that the only issues in the case were whether the
trial court had erred by (1) denying the wife’s motion for a separate trial, (2)
admitting her statement as against Lehne, and (3) admitting Lehne’s statement as
against both defendants.304
The court determined that the answer to the first
question hinged on the second and third.305
Although Lehne invoked Buckminster
for the principle that no one may confess for another and no one should be
subject to conviction based upon the statement of another made outside his
presence, the court observed that Lehne had full opportunity to contradict the
wife’s statement but generally did not and effectively adopted and confirmed it.306
The court also found the trial court’s deletions from Lehne’s statement
appropriate as to both defendants.307
The Lehne court then turned to the question of severance and noted that it was
determined by the holding on the defendants’ statements.308
Citing Birger, the court
explained, “The general rule is that persons jointly indicted shall be jointly tried . .
. , and it is only in those cases where fairness to one or more defendants requires it
that a severance motion is imperatively required.”309
The court also cited Birger,
Covitz, Gukouski, Gillespie, Doyle, and Fisher regarding the trial court’s discretion to
sever,310
then expounded:
Any set of circumstances which is sufficient to deprive a defendant of a
fair trial if tried jointly with another or others is sufficient to require a
separate trial, and on the other hand any reasons falling short of this
measure do not necessarily require a severance. On this principle it was
held by us in People v. Rupert . . . that a severance should have been granted where
the defenses of the defendants were antagonistic and each had made a statement denying
his own guilt and accusing his codefendant; these statements constituting the
principal evidence relied on by the people. In People v. Sweetin, . . . we
reached the same conclusion, and for the same reason. In that case the defendants
were jointly indicted for the murder, by arsenic poisoning, of Mrs.
302 Id. at 644-645, 474.
303 Id. at 633, 469.
304 Id. at 647, 475.
305 Id.
306 Id. at 647-648, 475-476.
307 Id. at 649, 476.
308 Id.
309 Id.
310 Id. at 649-650, 476.

(2011) J. JURIS 114
Sweetin’s husband, which it was shown might have been committed by
either one of them. Each defendant denied guilt, blaming the other, and
the codefendant Hight signed a confession admitting the murder of his
own wife, denying the one for which he and Mrs. Sweetin were being
tried, and affirmatively asserting that he had delivered the arsenic to her.
So, also, in People v. Rose, . . . we decided that fairness required a separate
trial. Rose and Eckford were jointly indicted for murder, and a motion for
a separate trial was made by Rose. The affidavit of his attorneys
supporting this motion stated that Eckford would testify that he was not
present at the time of the shooting and that Rose would testify that the
shot was, in fact, fired by Eckford. We held that upon this showing a
severance should have been granted even though the inconsistency did not
actually arise on the trial by reason of the failure of Rose to testify. We
found that his failure to testify may well have been caused by the very
failure to grant him a separate trial and the consequent embarrassment to
the attorneys in attempting to present inconsistent defenses to the same
jury. The judgment was reversed for that reason. These are the principal
cases relied upon by the defendants here, and to them more might be
added. All are illustrative of the principle uniformly adhered to by this
court, i.e., that a separate trial should be granted when fairness so requires.
The case at bar presents no such requirement. Neither defendant had any
defense antagonistic to the codefendant.311
This tour-de-force of mischaracterization of earlier authorities deserves to be
quoted and analyzed at length. The Lehne court came closest to saying something
accurate about Rupert, but as we have seen, the Rupert court for its holding relied
entirely upon Buckminster and its appropriate rule that incriminating statements by
a codefendant required severance of defendants unless the prosecutor agreed to
delete all incriminating portions or to not introduce the incriminating statement at
trial.312
Although the Rupert court certainly did notice that the defendants (not the
“defenses of the defendants” as the Lehne court stated) were antagonistic to each
other, that their respective statements each exonerated the declarant and
implicated the other, and that these statements were the prosecution’s only
substantial incriminating evidence, the Rupert court made its decision based on
mishandling of the statements under Buckminster, not on some general rule
regarding antagonistic defenses.313
The Sweetin court said nothing about
antagonistic defenses; Pastor Hight did not defend by denying guilt and blaming
Elsie Sweetin but rather confessed to poisoning his wife, admitted complicity in
311 Id. at 650-651, 476-477.
312 See Rupert at 45-46, 458-459; Buckminster at 447.
313 See Rupert at 45-46, 458-459.

(2011) J. JURIS 115
the death of Mr. Sweetin, and defended by claiming insanity; there is no indication
in the opinion that Elsie Sweetin ever blamed Hight for the death of her husband;
and the Sweetin holding hung on mishandling of a codefendant’s statements (as
well as shocking abuses in the procurement of defendant statements), not on
antagonistic defenses.314
Lehne’s misreading of Rupert and Sweetin appears to have
derived more from Fisher than from actual readings of Rupert and Sweetin. The only
mention of antagonism in Rose came in the quote from Bopp, and Rose, like Bopp,
was decided on the basis of a defendant’s right to unconflicted counsel, not on
antagonistic defenses.315
Lehne completely missed or ignored the key nuance that
Rose, unlike Lehne, involved joint representation.316
Moreover, Lehne never needed
a lengthy exegesis on antagonistic defenses; the defenses clearly were not
antagonistic, but were in “complete accord” as to the essential facts, as the court
observed, so the holding did not, and did not need to, define antagonistic
defenses.317
There is also no indication in the Lehne opinion that the defendants
ever raised the issue of antagonistic defenses; their arguments appear to have been
focused solely on admission of the statements.318
One of the few things Lehne got
right was its repeated iteration of the general rule “that a separate trial should be
granted when fairness so requires”319
—a clean statement of the principle at stake
uncluttered by confused babble about antagonistic defenses.
On the same day as Lehne, in a per curiam decision, the Illinois Supreme Court
decided People v. Albers (1935), a case involving bitter factional strife between rival
coal miners’ unions that led to a drive-by shooting in which a rifle bullet passed
through the wall of a house and killed a schoolgirl as she did her homework.320
As
in Fisher, defendants alleged that their confessions were procured by force.321
Also
among the forty assigned errors, the defendants contended that one defendant’s
confession should not have been admitted as against codefendants who had not
adopted it.322
The court cited Birger, Lopez, Sullivan, and Hotchkiss on discretionary
severance, Fisher for pretrial defendant statements that implicate other defendants
requiring severance unless the statements are excluded or redacted, and found no
abuse of discretion where the statements were redacted pursuant to a
stipulation.323
In response to defendants’ argument that their case came under “the
314 See Sweetin at 252-253.
315 See Rose at 217-218, 791.
316 See Lehne at 647, 475.
317 Id. at 651, 477.
318 Id. at 644-645, 647; 474, 475.
319 Id. at 651, 477.
320 360 Ill. 73, 74-75, 195 N.E. 459 (Feb. 21, 1935) (per curiam).
321 Id. at 76, 78-82.
322 Id. at 74, 82.
323 Id. at 83-84.

(2011) J. JURIS 116
rules laid down . . . in . . . Sweetin . . . and . . . Rupert,” the court closely followed
language in Fisher (though without citing it as support), stating, “In the Sweetin
Case the principal ground for severance was that the defenses of the two accused
were antagonistic.”324
The court notably focused on the actual defenses at trial
rather than the allegedly involuntary confessions in finding “no such conflict
here.”325
After finishing its brief discussion of Sweetin and antagonism, the court
explained regarding Rupert, “Each defendant in the Rupert Case cleared himself
and implicated the other. Here the defendants who confessed did not try to throw
the blame on the shoulders of the others. The statement of each confessing
defendant was used only against its maker unless some other defendant had
adopted it in whole or in part. . . . The rule laid down in the Rupert Case is not
controlling in this case.”326
Thus Albers followed Fisher in incorrectly defining Sweetin as a case decided on
antagonistic defenses, but the court correctly recognized antagonistic defenses (as
offered at trial) to constitute an entirely separate category from conflicting pretrial
codefendant statements. The Albers court also apparently followed Fisher in
categorizing Rupert not as an antagonistic defenses case, but as a codefendant
statements case, albeit one in which each declarant exculpated himself and
implicated his codefendant. In other words, although later courts would define the
mutual self-exoneration and finger-pointing that occurred in Rupert as the defining
characteristic of antagonistic defenses, Fisher and Albers (and Rupert) did not.
Notably, both defense counsel and the court seem to have understood that Sweetin
and Rupert laid down rules (plural), not the same rule—contrary to Lehne. Although
the Albers court erred regarding Sweetin and missed crucial nuances in Rupert by
following Fisher’s hyper-abbreviated and misleading summaries of those cases’
holdings, it avoided stating a general antagonism-severance rule, as in Payne, or
attaching Sweetin and Rupert to that rule, as Lehne had and later opinions would.
The next case in the lineage, People v. Patris (1935), which involved the bombing of
a Chicago beauty parlor,327
never mentioned or addressed antagonism, was only
concerned with codefendants’ confessions or admissions, and did not conflate the
two categories. The court cited Buckminster, Sweetin, Fisher, and Carmichael for the
rule that codefendants’ incriminating statements required severance “unless the
state's attorney declares that the admissions or confessions will not be offered in
324 Id. at 84.
325 Id. at 84. Intriguingly, the court noted, “The fact that all defendants were tried together
seemingly did not distress their counsel, as they all joined, at times, in representing all the
defendants, even going to the extent of examining each other's clients.” Id.
326 Id.
327 360 Ill. 596, 597, 196 N.E. 806 (Jun. 14, 1935) (Jones, J.).

(2011) J. JURIS 117
evidence upon the trial or unless there be eliminated from the confessions any
reference to the codefendant applying for a severance.”328
The court held that the
trial court had violated this rule by admitting the codefendant’s prejudicially
incriminating confession with only a limiting instruction as to Patris, and
reversed.329
Patris, apparently, correctly understood Sweetin and Fisher, like
Buckminster and Carmichael, to be about codefendants’ statements, not antagonistic
defenses.
In People v. Siegal (1935), which involved the kidnapping for ransom of a Toledo,
Ohio businessman in Chicago, the Court also never mentioned antagonism and
only discussed and rejected claims of prejudice from a defendant’s confession that
was admitted with “x” substituted for the codefendants’ names.330
The court cited
no authority beyond the Illinois kidnapping statute.331
Siegal is noteworthy chiefly
for its reflection on the other, usually forgotten side of the joinder-severance
equation:
The people's rights in criminal prosecutions are to be observed as much as
the defendants' rights. Both parties are clothed with certain privileges and
presumptions and they must be duly regarded. It would be unjust and
unreasonable to universally permit separate trials of persons who are
jointly charged with a crime, and the better practice is not to permit it
unless it shall appear from a showing made to the court that a denial of a
severance would work prejudice to some one or more of the parties.332
ENTRENCHING THE RULE: BETSON AND MINNECCI, 1936
The next case in the lineage, People v. Betson (1936), involved the kidnapping for
ransom of a Peoria physician.333
Among 27 assigned errors, the defendant
contended that the trial court improperly denied his motion for severance and
erroneously admitted a codefendant’s confession; because the only basis for
Betson’s severance motion was a vague intimation of prejudice from
328 Id. at 601, 808.
329 Id. at 600-02.
330 362 Ill. 389, 390-95, 200 N.E. 72, 73-74 (Dec. 19, 1935) (Jones, J.; Shaw, J., dissenting).
331 Id.
332 Id. at 393, 74. In a much later case, People v. Hill, 65 Ill.App.3d 879, 382 N.E. 2d 881 (Nov. 17,
1978) (Trapp, J.), Judge Craven wrote a dissent describing what he found to be a disturbing case of
apparently inconsistent or incorrect verdicts arising from separate trials of joint wrongdoers—
perhaps the worst potential result of severing otherwise appropriately joined codefendants. See Hill
at 889-90, 887-88 (Craven, J., dissenting).
333 362 Ill. 502, 503-04, 200 N.E. 594 (Feb. 14, 1936) (Orr, J.).

(2011) J. JURIS 118
codefendants’ statements, these constituted the same error in different clothing.334
Regarding severance, the court found that Betson’s “motion and affidavit did not
disclose that his defense was to be antagonistic to that of his codefendants,”
noting further, “The record is conclusive that there was no antagonistic defense
for the reason that no affirmative defense was offered by any of the other
defendants.”335
Citing Nusbaum, the court stated, “This court, unless the facts were
not then known, will not reverse a judgment and order a separate trial unless all
the reasons therefor were presented to the consideration of the trial court.”336
The
court found no abuse of discretion in the denial of severance because Betson’s
motion and affidavit were “insufficient in law” but added gratuitously, “The right
to a severance must rest upon the ground that the defense to be offered by one
defendant is so antagonistic to the defense to be offered by the remainder of the
defendants that severance is necessary to insure a fair trial. [Citing Lawson, Fisher,
and Payne.]”337
The court then discussed how the codefendant confessions at issue
were appropriately redacted.338
It is unclear from the opinion whether Betson ever raised the issue of antagonistic
defenses, or whether the court injected that concept. Even assuming that
severance under Illinois law depended entirely upon antagonistic defenses,
however, the Betson court never had to go beyond its determination that Betson’s
severance motion and affidavit did not show antagonistic defenses. Betson took
Payne’s “rule” and extended it, making it explicitly exclusive by saying the right to
severance “must rest upon the ground” of antagonistic defenses, indicating that
no other ground could justify severance. Thus Betson sharply rigidified a rule it did
not need to state.
Betson also added or reinforced some other noteworthy, sometimes countervailing
tendencies in Illinois’ developing antagonism-severance rule. As in Albers, the
court defined antagonistic defenses by the defenses actually offered at trial, not by
the content of codefendants’ pretrial statements—a distinction that later would be
lost as courts indiscriminately lumped codefendant statements together with
antagonistic defenses or treated the former as a subcategory of the latter. Betson
also reinforced the sufficient grounds and affidavit requirement that surfaced
earlier in Temple, Paisley, Wood, and Nusbaum, but added the condition, “unless the
facts were not then known”—a significant qualification for trial fairness that
would be lost, then rediscovered and expanded much later.
334 Id. at 507-08.
335 Id. at 507.
336 Id. at 507-08.
337 Id. at 508.
338 Id. at 508-09.

(2011) J. JURIS 119
People v. Minnecci (1936),339
decided the same day as Betson, further entrenched
Illinois’ antagonism-severance rule while further erasing or obscuring the
precedential tracks leading to it. In Minnecci, a case involving three codefendants
whose robbery of a haberdasher’s shop resulted in the proprietor’s murder,
defendant Minnecci claimed that he was prejudiced by pretrial statements of his
two codefendants.340
The court found no prejudice where the codefendants never
accused Minnecci of guilt either in their statements or at trial.341
The court also
noted that Minnecci moved for severance but made no showing in support of the
motion.342
In support of its holding, the court cited Birger for the general rule of joint trial,
Lehne for the rule that the need for severance “is governed by the facts in each
case . . . and is addressed to the sound discretion of the trial judge.”343
The court
then declared, without citing any additional authority,
Any set of circumstances which is sufficient to deprive a defendant of a
fair trial if tried jointly with another or others is sufficient to require a
separate trial, and, on the other hand, any reasons falling short of this
measure do not make a severance necessary. In the absence of a showing
to the trial court as to how the defendant would be prejudiced by a joint
trial, he is not in position to complain of the action of the trial court on
writ of error. However, we have examined the point on its merits. The rule
is that where there is more than one defendant and the defenses are
antagonistic, and one defendant accuses the other, so that it will be
impossible for the defendant who asked a severance to have a fair trial, the
severance should be granted.344
Unlike Betson, Minnecci apparently ignored the sweeping antagonism-severance rule
in Payne. Instead, the Minnecci court seems to have derived its own sweeping
general statement of the rule by distilling the somewhat rambling discussion of
Rupert, Sweetin, and Rose in Lehne, which (incorrectly) linked severance to
antagonistic defenses in all three cases. Probably for that reason, unlike Payne’s
implicitly exclusive and Betson’s explicitly exclusive iteration of the rule, Minnecci’s
version was nonexclusive—it required severance if there were antagonistic
339 362 Ill. 541, 200 N.E. 853 (Feb. 14, 1936) (Farthing, J.).
340 Id. at 542.
341 Id. at 545. The three defendants’ combined statement was introduced and admitted in evidence
without objection. Id. at 544.
342 Id. at 544-545.
343 Id. at 545.
344 Id. at 545.

(2011) J. JURIS 120
defenses, not only if there were, allowing other possible grounds for severance.
Minnecci’s version also included other appropriate qualifications, such as the degree
of antagonism condition—“so that it will be impossible for the defendant who
asked a severance to have a fair trial”—which may have been consciously or
unconsciously derived all or in part from Payne, and the closely related “and one
defendant accuses the other” condition, which clearly came from Lehne.
The conditions in Minnecci’s iteration of the antagonism-severance rule can be read
at least a few different ways, with varying plausibility. It could indicate that
antagonistic defenses, one defendant accusing the other, and the impossibility of a
fair trial are all separate necessary factors that are cumulatively sufficient to require
severance; that antagonistic defenses and one defendant accusing the other are
separate necessary factors that together make a fair trial impossible and require
severance; that antagonistic defenses and one defendant accusing the other are
actually the same factor, with one defendant accusing the other being part of the
definition of antagonistic defenses, and that the presence of that factor necessarily
entails that a fair trial would be impossible, or in other words is sufficient in itself
to require severance; or that antagonistic defenses and one defendant accusing the
other are the same factor, but the impossibility of a fair trial is an additional,
independent necessary factor for severance.
Whichever reading of Minnecci might be correct, by all readings, and regardless of
whether one defendant accusing the other is seen as a separate necessary factor or
part of the definition of antagonism, it is required for severance. Minnecci’s one-
defendant-accusing-the-other ingredient thus helps to define either antagonism or
degree of antagonism by indicating that lesser levels of antagonism do not require
severance. Minnecci’s rule iteration does not address whether antagonistic defenses
are limited to defenses presented at trial or also include codefendant statements,
an issue on which later courts would reach varying conclusions; because
Minnecci’s codefendants did not accuse him either in statements or at trial, the
court did not have to decide that issue. Of course, whatever the Minnecci court
meant to say, its rule was built on no legitimate precedential foundation.
Minnecci’s statement regarding the defendant’s obligation to make a showing of
prejudice to the trial court added to the case law regarding sufficient grounds and
affidavits, but was never cited for that purpose, perhaps because although the
court could have decided the case on that issue, it did not. Minnecci also kept,
nearly verbatim, Lehne’s statement regarding “Any set of circumstances . . . ,” an
overarching statement of principle which kept the whole purpose of the severance
rule—fairness—in proper perspective, but which many later courts either forgot
or overlooked.

(2011) J. JURIS 121
THE LONG-FORGOTTEN ‘FOUNTAINHEAD’: BRAUNE, 1936
People v. Braune (1936),345
which decades later would be called “the fountainhead”
of Illinois antagonistic defenses jurisprudence, was a case involving ugly facts that
was decided almost entirely on its facts, with little reference to existing law.
Codefendants Frank R. Braune and Maurice L. Dale, both physicians, were
charged with killing Marie Dwyer by performing a criminal abortion on her.346
Both were found guilty of manslaughter.347
Dwyer was Dr. Dale’s patient, and, as the opinion stated in delightfully
circumspect Victorian fashion, “also kept company with him.”348
As a result, she
became pregnant, which they discovered in January 1935. On February 18, 1935,
they went to Dr. Braune’s office, where he examined Dwyer. Dwyer and Dale
returned to Braune’s office on February 21 and 22. On the latter date, the
prosecutor alleged, Dale procured from Braune an abortion on Dwyer. While
using a forceps to remove placental tissue, Braune inadvertently also caught a loop
of intestinal tissue, then severed the intestine while using a scissors to cut loose
the tissue held in the forceps. Braune and Dale then found that the severed tissue
was intestine, attempted to put the severed ends back together, and took Dwyer to
a hospital for surgery to reconnect her intestine. She died a few days later.349
345 363 Ill. 551, 2 N.E.2d 839 (Jun. 10, 1936) (Jones, J.).
346 Id. at 552, 839.
347 Id. The Chicago Daily Tribune ran more than 20 articles on the Braune-Dale case from 1935-36,
though some were quite brief. See Doctor Accused After Operation Released in Bail, CHI. DAILY TRIB.,
Feb. 26, 1935, at 12; Seek 2 Doctors After Girl Dies of Operation, CHI. DAILY TRIB., Feb. 27, 1935, at 2;
Two Physicians Seized at Quiz on Girl’s Death, CHI. DAILY TRIB., Feb. 28, 1935, at 5; Free 2 Doctors on
$20,000 Bond in Girl’s Death, CHI. DAILY TRIB., Mar. 1, 1935, at 15; Physician’s Aid Relates Story of
Girl’s Death, CHI. DAILY TRIB., Mar. 3, 1935, at 13; Quiz 3 Today in Girl’s Death Laid to an Illegal
Operation, CHI. DAILY TRIB., Mar. 4, 1935, at 11; Seek Indictment of 2 Physicians in Girl’s Death, CHI.
DAILY TRIB., Mar. 5, 1935, at 9; Study Doctor’s Books in Quiz on Abortion Ring, CHI. DAILY TRIB.,
Mar. 6, 1935, at 16; Seeks to Indict 2 Doctors Today in Death of Girl, CHI. DAILY TRIB., Mar. 7, 1935, at
3; Vote to Indict Two Doctors in Abortion Death, CHI. DAILY TRIB., Mar. 8, 1935, at 13; Indicted Doctor
Named by Nurse in Abortion Quiz, CHI. DAILY TRIB., Mar. 9, 1935, at 6; 50 Doctors May Lose Licenses
in Abortion Ring, CHI. DAILY TRIB., Mar. 10, 1935, at 21; Doctors Freed on $50,000 Bond in Murder
Case, CHI. DAILY TRIB., Mar. 12, 1935, at 15; Seize Abortion Doctor on New Murder Charge, CHI.
DAILY TRIB., May 1, 1935, at 18; Fainting Juror Brings Mistrial in Abortion Case, CHI. DAILY TRIB.,
June 6, 1935, at 10; Abortion Death Evidence Given by Doctor’s Aid, CHI. DAILY TRIB., June 7, 1935, at
10; 2 Doctors Open Abortion Trial Defense Today, CHI. DAILY TRIB., June 8, 1935, at 13; Finish Evidence
in Murder Trial of Two Doctors, CHI. DAILY TRIB., June 12, 1935, at 10; Two Abortion Doctors Guilty;
Get 1 to 14 Years, CHI. DAILY TRIB., June 13, 1935, at 1; Sentence Two Physicians in Abortion Death,
CHI. DAILY TRIB., June 29, 1935, at 6; Police Arrest Dr. F. F. Braune on New Charge, CHI. DAILY
TRIB., Feb. 4, 1936, at 6; Sues Doctors for $10,000 in Girl’s Abortion Death, CHI. DAILY TRIB., Feb. 25,
1936, at 2; Two Physicians Win New Trial in Death of Girl, CHI. DAILY TRIB., June 11, 1936, at 11.
348 Id.
349 Id. at 552, 839-40.

(2011) J. JURIS 122
The defendants had separate counsel, and before trial, Braune moved to sever
their trials, including a detailed verified petition giving his version of events.350
Braune claimed that on his first examination of “Miss Dwyer” he found that she
had been pregnant for about three months, but it appeared that the foetus was
dead and that Dwyer was the “victim of a ‘missed abortion[.]’”351
Braune decided
he would have to anesthetize Dwyer for an examination to be certain of her
condition and that of the foetus, and that if the foetus was dead, it would have to
be removed to avoid serious consequences and risk of death to Dwyer.352
Braune’s
petition “set forth with great particularity” what happened on February 22, when
Dwyer was anesthetized.353
Braune averred that Dwyer’s “uterus had become so
boggy and impaired that it ruptured, admitting into it the intestine, and that the
latter was severed before he was aware of the rupture[,]” and that “the diseased
and impaired condition of her genital organs was due to efforts of Dr. Dale to
abort her[.]”354
Braune also alleged that Dwyer’s general physical condition was
“greatly depleted” due to a head injury that left her incapable of any
employment.355
Braune’s petition further averred that Dwyer’s condition as an
invalid resulted from a fall, and
While she was in such state of invalidism said Dale caused her to become
pregnant, and thereupon he sought to persuade her against her better
instincts to bring about a condition, or to have a condition brought about
in her uterus and genital organs which would result in her miscarriage; that
her condition during the months of December, 1934, and January, 1935,
was one of extreme suffering and ill-health; that during said months said
Dale was with her a great deal and sought to and did tamper with her
genital organs, and at divers times used a catheter on her; that he
prescribed and gave her medicines which had an injurious effect upon her
internal organs, and some of which medicines were intended to bring
about a miscarriage; that she suffered excruciating pain at times in the
lower pelvis, and that her suffering and despondency finally became so
unbearable that she attempted suicide on January 11, 1935, in the office of
350 Id. at 552-553, 840.
351 Id. at 553, 840. A “missed abortion” occurs when a fetus dies in the uterus but is not expelled
for two months or more, which can lead to health complications for the mother. See
http://medical-dictionary.thefreedictionary.com/missed+abortion.
352 Id.
353 Id.
354 Id.
355 Id.

(2011) J. JURIS 123
said Dale and had to be taken to the Cook County Hospital for
treatment.356
Braune’s petition warned that Dale would testify in his own behalf and that their
“defenses [would] be directly and diametrically conflicting and antagonistic to each
other and it would be impossible for him to secure a fair and impartial trial jointly
with Dale.”357
The court denied Braune’s motion, whereupon Dale similarly moved for
severance, alleging that the facts stated in Braune’s petition were prejudicial to
him, denying the truth of any of Braune’s averments that implicated him in the
crime, warning that Braune would testify in his own behalf to the facts alleged in
his petition, and contending that “because they are codefendants he cannot cross-
examine Braune as he would desire to do in view of their antagonistic defenses;
and that he cannot obtain a fair and impartial trial if they are tried jointly.”358
The
prosecutor replied that the defenses merely indicated that each counsel would
involve the other physician-codefendant, and “ ‘[t]he court by proper instructions
can certainly caution the jury.’”359
The court also denied Dale’s motion.360
The Braune court cited Paisley for the rule that a severance motion must set out
sufficient grounds, Hotchkiss and Nusbaum for the rule that a court decides such a
motion on the grounds advanced at the time the motion was made.361
The court
politely but somewhat incredulously rejected the State’s argument that the
defendants’ petitions “did not state any facts or any theories which disclose that
the defenses would be inconsistent[,]” pointing to the grisly facts stated in
Braune’s petition regarding the serious physical harm and excruciating pain Dwyer
suffered from Dale’s alleged earlier abortion attempts, all of which Dale denied.362
The court cited Patris regarding a trial court’s judicial, but not arbitrary, discretion
to grant or deny a severance.363
The court then explained,
It was apparent from the petitions that an actual and substantial hostility
existed between the defendants over their lines of defense. Each was
protesting his innocence and condemning the other. Each declared the
other would take the witness stand and testify to a state of facts which
356 Id. at 554-555, 840-841.
357 Id.
358 Id. at 553-554, 840.
359 Id. at 554, 840.
360 Id.
361 Id.
362 Id. at 554-555, 840-841.
363 Id. at 555, 841.

(2011) J. JURIS 124
would be exculpatory of the witness and condemnatory of his
codefendant. Criminations and recriminations were the inevitable result.
Ordinarily the right of one defendant to cross-examine his codefendant
does not exist. However, there is an exception to the rule, based on justice
and necessity. Where one defendant has given testimony which tends to
incriminate the other defendant, the latter, especially where he had no
prior notice of such incriminating testimony, may cross-examine the
former; but we know of no decided case where such a situation had been
brought to the attention of the court prior to the trial and a severance was
denied.364
The court distinguished Allison, in which each codefendant testified in his own
behalf and blamed the other, and one defendant’s counsel cross-examined the
other defendant after the prosecution’s cross-examination.365
The Braune court
explained, “Neither defendant knew what the other defendant would testify to
until each testified on the witness stand. No motion for separate trial had been
made.”366
And although “it was claimed that he usurped the functions of a
prosecutor in his cross-examination[,]” the Allison court “held that where
codefendants are represented by different counsel, who knew nothing of what the
testimony of the other would be until they heard it from the witness stand, justice
requires that the defendant who claims to be innocent shall have the right of
cross-examination.”367
In Braune, where the antagonism was firmly pointed out
before trial, there was no such risk of surprise.
The court observed that the trial court “did not hold the petitions were
insufficient to set forth the antagonism of defenses[,]” but instead ruled, “‘While
the petition avers the interests of defendants are antagonistic, I believe the
interests of each may be protected by admonitions or instructions to the jury as
matters arise requiring protection against any clash of interests.’”368
The Braune
court, however, declared,
It is our belief that no judge, however learned and skillful, could have
protected the defendants in this case against their own hostility. The
record shows in many instances that the defendants' witnesses were
subjected to searching and critical cross-examinations by counsel for the
antagonistic codefendant. Frequently it extended beyond the field covered
364 Id.
365 Id. at 556, 841.
366 Id.
367 Id.
368 Id.

(2011) J. JURIS 125
by the state's attorney and in some cases went into matters never inquired
of by him.369
The court noted that Braune and three of his witnesses were cross-examined by
Dale’s counsel; Dale and four of his witnesses were cross-examined by Braune’s
counsel. The court recounted, “It was in one of these cross-examinations that the
facts relating to Miss Dwyer's attempted suicide in Dale's office and their
differences in religious beliefs were injected into the case. Irrelevant matters, such
as the change of name of Dale, were brought out by counsel for Braune.”370
Although the prosecution did not cross-examine a character witness Dale called, a
long-time practicing physician and professor of pediatrics at the University of
Illinois who knew Dale when he attended the university, had known him for years
thereafter, and testified to his “general reputation for being a peaceable and law-
abiding citizen,” Braune’s counsel did cross-examine the witness solely to bring
out the fact that Dale had changed his name, and that when the witness was
Dale’s teacher, he had known Dale as “Udelsky.”371
This, together with the court’s
circumspect reference to “religious differences,” suggests that Braune’s counsel
was determined to hammer home to the jury that Dale was a Jew who had
changed his name, and so inflame any open or latent anti-Semitism jurors might
harbor and add interfaith miscegenation to an already scandalous (for the times)
story involving forbidden extramarital sex and cohabitation, bastardy, abortion,
and attempted suicide.372
The court concluded, in what would—much later—
become famous and oft-cited language, “The trial was in many respects more of a
contest between the defendants than between the people and the defendants. It
produced a spectacle where the people frequently stood by and witnessed a
combat in which the defendants attempted to destroy each other.”373
Citing
Minnecci not specifically regarding antagonism, but only for the sound general rule
that “Any set of circumstances which is sufficient to deprive a defendant of a fair
trial if tried jointly with another is sufficient to require a separate trial[,]” the court
held, “The situation presented to the court upon the applications for separate
trials required the granting of the petitions.”374
369 Id.
370 Id.
371 Id. at 556-557, 841-842.
372 As an example of how different times, and religious and sexual mores, were back then, during
the 1920s, an interfaith extramarital affair that produced an illicit son threatened to ruin the career
of America’s best-known and best-loved composer of classical music, George Gershwin, and had
to be carefully hushed up. See JOAN PEYSER, THE MEMORY OF ALL THAT: THE LIFE OF GEORGE
GERSHWIN 109-111 (2006).
373 Id. at 557, 842.
374 Id. The court also noted “other errors appearing in this record may be hereafter avoided[,]”
including, inter alia, evidence that the prosecutor contemplated a bastardy charge against Dale, or

(2011) J. JURIS 126
FORGETTING BRAUNE: 1938-1944
After Braune, there was no new case in Illinois’ antagonistic defenses lineage for
nearly two years until People v. Kozlowski (1938), in which two defendants were tried
jointly and convicted of armed robbery and a third pleaded guilty in a separate
trial.375
At trial, Kozlowski moved for severance because his two codefendants
were charged with being habitual criminals, because “the respective defenses were
antagonistic,” and because the other two had made statements tending to
incriminate him.376
In a very brief paragraph, the court cited Patris on joint trial
and discretionary severance, found Kozlowski’s habitual criminals argument
meritless, stated, “Boreman’s defense was not antagonistic to that of this
defendant” without citing authority, and affirmed.377
Three years later, People v.
Mutter (1941), another arson-for-insurance case involving two brothers like Covitz,
was decided.378
Mutter, like Kozlowski, ignored Braune. The court cited Wood and
Corbishly regarding joint trial, Kozlowski on discretionary severance.379
Rejecting
Max Mutter’s complaint of improper denial of severance, the court observed,
“Generally, if one defendant makes confessions implicating the other defendant or
defendants, a severance should be ordered [citing Bolton] and, likewise, where the
defense of one defendant is so antagonistic to the defense of the others that a
severance is necessary to insure a fair trial. [Citing Payne.]”380
The court found
“neither of those elements . . . present” where no defendant confessed or offered
an antagonistic defense.381
The court also cited Gillespie regarding testimony
competent against one defendant but incompetent against another and held that
the trial court handled any such situations appropriately.382
Mutter discussed and
dismissed severance in one paragraph and is noteworthy mostly for revealing the
court’s understanding that antagonistic defenses and codefendant statements are
two distinct categories.
Braune made a brief, minor reappearance in 1942 in People v. Meisenhelter.383
Meisenhelter involved a group of union officials and members who conspired to,
that Dale refused to marry Dwyer, and other evidence regarding, apparently, the equipment and
techniques used for the abortion. Id. at 557, 842.
375 368 Ill. 124, 125, 13 N.E.2d 174 (Feb. 16, 1938) (Farthing, C.J.).
376 Id. at 125.
377 Id. at 126, 175-76.
378 378 Ill. 216, 217-25, 37 N.E.2d 790 (Nov. 18, 1941) (Farthing, J.).
379 Id. at 227-228.
380 Id. at 795.
381 Id.
382 Id. at 796.
383 381 Ill. 378, 388-89, 45 N.E.2d 678, 684 (Nov. 17, 1942) (Stone, C.J.).

(2011) J. JURIS 127
and did, bomb an oil pipeline built with non-union labor.384
On appeal of the
bombing case, which was tried separately from the conspiracy charges, the
defendants, citing Patris, complained of prejudice from statements of a
codefendant who pleaded guilty.385
The State, citing Minnecci and Betson, countered
that the defendants showed no prejudice and “the verified motion did not disclose
that the defenses . . . were antagonistic.”386
The court cited Braune and Patris on
discretionary severance, Braune and Minnecci, Paisley, Hotchkiss, and Nusbaum for the
requirement that a severance motion set out appropriate grounds for the trial
court to consider.387
The court relied on Minnecci regarding joint trial, the
defendant’s obligation to show prejudice from a joint trial, the “any set of
circumstances” sufficient to deny a fair trial language originally from Lehne, and,
most significantly, “Where defenses are antagonistic and one defendant accuses
the other, thus making it impossible for the defendant asking for a severance to
have a fair trial, the severance should be granted.”388
The court explained that the
severance motions did not show how the complaining defendants’ defenses were
antagonistic to the defense of the codefendant who made the statements at issue,
and also pointed out that the trial court properly deleted the names of defendants
in the separate conspiracy trial, and that the codefendant in question was not even
a defendant in the bombing case.389
The court lengthily quoted Siegal regarding
how courts must protect the people’s rights along with the defendants’ rights in
considering severance motions, noted that no antagonistic defenses arose at trial,
and held that denial of the severance motions was no error.390
In the appeal of the
related conspiracy convictions, the court quoted the same language from Siegal,
cited Minnecci regarding the trial court’s discretion to sever, and stated, “There was
no showing made on the application for severance that the defenses of the
different defendants were antagonistic.”391
In addition to mentioning Braune for
the last time until 1975, Meisenhelter is noteworthy for suggesting that it was
relevant whether or not antagonistic defenses actually surfaced at trial—later cases
would deny that—and for seemingly moving toward lumping codefendant
statements together with antagonistic defenses more than earlier cases had done.
People v. Serritello (1944)392
entirely concerned codefendant confessions, never
mentioned or otherwise addressed antagonism, and did not conflate the two
384 Id. at 381-82, 680-81.
385 Id. at 387-88, 683.
386 Id. at 388, 683.
387 Id. at 388-389, 684.
388 Id. at 388-89, 683-84.
389 Id. at 389, 684.
390 Id. at 389-390, 684.
391 People v. Meisenhelter, 317 Ill.App. 511, 516-17, 47 N.E.2d 108 (Feb. 24, 1943) (Hayes, J.).
392 385 Ill. 554, 53 N.E.2d 581 (Jan. 20, 1944) (Murphy, J.).

(2011) J. JURIS 128
categories. The only evidence linking codefendant Clow to a burglary was his and
Serritello’s joint possession of stolen items after the burglary, and Serritello’s
written confession.393
The court cited Patris and Sweetin on discretionary severance,
and those two cases plus Fisher, Buckminster, Carmichael, and Betson on how to
handle codefendants’ confessions.394
Although the prosecution deleted Clow’s
name and replaced it with “Blank” whenever it was mentioned as Serritello’s
written confession was offered in evidence solely against Serritello, the court held
that the confession nevertheless prejudiced Clow, and reversed his conviction.395
COMPOUNDING CONFUSION: BARBARO AND THE EXPLICIT
RECATEGORIZATION OF INCRIMINATING CODEFENDANT
STATEMENTS AS ANTAGONISTIC DEFENSES, 1946
The next case in the lineage, People v. Barbaro (1946),396
is another codefendant-
statements case, but the court transformed it into an antagonism case by
needlessly invoking the language of antagonism and mixing it with the proto-
Bruton issue, as Serritello had avoided. Barbaro involved a complex lattice of multiple
interconnected codefendant statements and confessions. Like Serritello, Barbaro was
a burglary case in which the two defendants were found in joint possession of
stolen goods, and the only evidence linking the defendants to the burglary were
their codefendants’ statements, along with their own statements.397
Each
defendant made multiple statements to police, some while separate from each
other, some allegedly in each other’s presence, some allegedly under either a
promise of immunity or threats by police.398
Prosecution witnesses testified
regarding the defendants’ statements without redaction of references to the
codefendants, though the court gave limiting instructions.399
The prosecution
sought to rely on evidence that at one of four separate conferences with local
authorities, both defendants, in each other’s presence, had made confessions
implicating themselves individually and each other, but the court concluded that
the “insuperable difficulty of separating such confessions from those made out of
393 Id. at 555-58, 581-83.
394 Id. at 556-57, 558, 582-583.
395 Id. at pp. 557-558, 582-583.
396 395 Ill. 264, 69 N.E.2d 692 (Nov. 20, 1946) (Wilson, J.).
397 Id. at 266-69, 693-94.
398 Id. Defendant Ferne Barbaro testified that the county sheriff of rural Saline County, Illinois, and
the police chief and fire chief of Marion, Illinois, scolded her for being a white woman in the
company of a black man (codefendant Preston Williams), talked to her in a vulgar manner,
promised to let her go if she made a statement implicating Williams, and threatened to see that she
“took a trip” if she did not. Id. at 267-268, 694.
399 Id. at 271, 695.

(2011) J. JURIS 129
the presence of each other remain[ed]” for the jury.400
The court accordingly
reversed and remanded for separate trials for both defendants.401
Barbaro thus was a case involving, and decided on, improper admission and use of
conflicting codefendants’ confessions causing prejudice that overwhelmed any
mitigative efforts. The Barbaro court, however, needlessly injected antagonism into
the equation. The court cited Serritello, Patris, Fisher, and Sweetin on joint trial and
discretionary severance, then continued,
The right to a severance must rest upon the ground that the defense to be
offered by one defendant is so antagonistic to the defense to be offered by
the other defendant that a severance is necessary to insure a fair trial.
[Citing Betson.] Accordingly, it has been generally held that when a motion
for a separate trial is made on the ground that a confession by a
codefendant implicates the petitioner, a severance should be ordered
unless the State's Attorney declares that the admissions or confessions will
not be offered in evidence upon the trial, or unless there be eliminated
from the confessions any reference to the codefendant applying for a
severance. [Citing Serritello, Fisher, and Bolton.] The reason for the rule is
that it is practically impossible to remove by instruction the prejudicial
effect of the confessions against the defendants implicated. [Citing
Sweetin.]402
By this language, the Barbaro court fell into the trap the Betson court inadvertently
set a decade earlier when it incorrectly declared that antagonistic defenses
constituted the sole, exclusive ground for separate trials. For if that was true, then
anything sufficient to justify severance, by definition, necessarily had to be
redefined as antagonistic defenses. Thus, notwithstanding that Illinois had a
reasonably successful rule—the Buckminster rule, as later expanded and modified—
regarding the handling of incriminating codefendant statements that predated all
the later confused babble about antagonistic defenses, Barbaro began the process
of twisting definitions to try to force what had been the separate, distinct category
of codefendant statements under the rubric of antagonistic defenses to conform
with Betson’s misstatement of the law. Although this process was never entirely
completed, and later courts occasionally could not help but stumble upon the
realization that the categories were fundamentally different while some other
courts considering codefendant statements ignored antagonism altogether, most
opinions in the antagonism lineage would dutifully declare that incriminating
400 Id.
401 Id. at 273, 696.
402 Id. at 270-71, 695.

(2011) J. JURIS 130
codefendant statements were a subcategory of antagonistic defenses—indeed, the
dominant subcategory—creating further complication and confusion down the
road.
As an example of this confusion, the Barbaro court went on to observe, “A fair
summary of the evidence adduced leads to the conclusion that the defenses of the
two defendants were, in fact, antagonistic to each other.”403
The court explained
that the People’s evidence showed Barbaro implicating codefendant Williams, but
Barbaro testified that she did so only because of promises and threats by local
officials, thus calling into question the prosecution’s evidence; similarly, the
People’s evidence disclosed that Williams admitted participation in the crimes at
Barbaro’s suggestion, but Williams denied this on the stand.404
The court missed
the key point that these examples show that although the defendants’ defenses
both contradicted the People’s evidence, they were in fact not antagonistic to each
other. A defendant’s defense normally refers to the defense that a defendant
proposes to, or actually does, offer at trial, not the state of the evidence before
trial, particularly the prosecution’s evidence. A defendant, and defense counsel,
have control over the defense offered, including choosing not to offer a defense at
all; they do not control the overall state of the evidence, which can of course
affect the plausibility of whatever defense the defendant selects. But Barbaro itself
clearly shows that part of a defendant’s defense can be challenging the validity of
pretrial statements or confessions. Such pretrial statements or confessions thus
necessarily do not define defendants’ defenses. Yet numerous later Illinois courts
would follow the Barbaro court in this misunderstanding, all for the purpose of
dutifully misconstruing incriminating codefendant statements as a subcategory of
antagonistic defenses.
The next opinion, People v. Tabet (1948), merely mentioned the appellants’
antagonism arguments while rejecting them for failure to specify grounds or show
antagonism (citing Woods and Paisley).405
Similarly, in People v. Mosher (1949), the
court quickly dismissed Mosher’s severance argument regarding his codefendant’s
confession by noting there was nothing in the record to indicate that the
statement in question was a confession or was “in any manner antagonistic to
[Mosher].”406
In People v. Varela (1950), Varela argued that he inevitably would be
prejudiced by joint trial with a jail-breaker and “ ‘confessed’” murderer, Najera,
who had drawn much public attention, and that Najera’s confession implicated
403 Id at 271, 695.
404 Id. at 272, 695-96.
405 402 Ill. 93, 101, 83 N.E.2d 329, 333-34 (Nov. 18, 1948) (Simpson, J.).
406 403 Ill. 112, 115-16, 85 N.E.2d 658 (Mar. 24, 1949) (Daily, J.) (citing Albers and Payne on
discretionary severance; Mosher relied on Mutter).

(2011) J. JURIS 131
Varela.407
The court noted that it was apparent from the record “and fully
conceded that the defenses of the two defendants are not antagonistic” because
Varela had entirely adopted Najera’s confession (citing Lehne and Fisher).408
The
court rejected the appellant’s reliance on Barbaro because “there the defenses were
antagonistic.”409
The court also held that the trial court had given appropriate
limiting instructions (citing Mutter and Gillespie), and that no prejudice was
shown.410
THE FIRST CLASSIC POSTWAR STATEMENT OF THE ‘RULE’:
LINDSAY, 1952
Not until 1952, in People v. Lindsay,411
did the Illinois Supreme Court substantially
add to the state’s supposed antagonism-severance rule. The defendants’ motions
for severance argued that codefendants had made incriminating statements, plus
what was already becoming standard boilerplate to the effect that a joint trial
could not be fair and impartial and “the defenses of the codefendants were
antagonistic and against the petitioner for those reasons.”412
The court cited Fisher
regarding incriminating codefendant statements normally requiring severance
unless the prosecution excluded or redacted the statements, but explained that the
various defendants all admitted substantially the same set of facts, “[t]he motions
for severance in no place show or point out in what manner the defenses of the
various defendants were antagonistic to each other,” and that as in Fisher, rather
than exonerating themselves, each defendant in his statement implicated both
himself and his codefendants, so the trial court was justified in denying the
severance motions.413
Lindsay thus only involved codefendant statements and had no reason to address
antagonism at all except inasmuch as codefendant confessions had come to be
wrongly perceived as a subcategory of antagonism, and defense counsel had begun
to claim “antagonism” with greater abandon. Although Lindsay did not cite Barbaro
or that opinion’s outright conflation of incriminating codefendant statements with
antagonistic defenses, Lindsay’s discussion of the codefendant statements in close
conjunction with antagonistic defenses implied the same conflation of categories;
the defendants’ severance motions clearly and explicitly conflated them.
407 405 Ill. 236, 247-48, 90 N.E.2d 631, 636 (Jan. 18, 1950) (per curiam).
408 Id. at 248, 636-637.
409 Id. at 248, 637.
410 Id.
411 412 Ill. 472, 107 N.E.2d 614 (Jun. 4, 1952) (per curiam).
412 Id. at 481, 619.
413 Id. at 481-482, 619.

(2011) J. JURIS 132
Lindsay’s master summary of the entire Illinois severance rule did not clearly
conflate the two categories, however, and it is noteworthy that in what was
intended to be a relatively complete, comprehensive statement of all parts of the
rule, the court never specifically mentioned codefendant statements. Rather than
giving one segment of the rule at a time, followed by authority specific to that
point, the court offered the entire rule as a package, followed by a cluster of
authorities not linked to any specific point and including the recent decisions in
Tabet and Varela that barely mentioned antagonism. The court borrowed the
Minnecci version and ignored the Payne/Betson version in proclaiming:
The general rule is that persons jointly indicted shall be jointly tried.
Except in those cases where fairness to one or more defendants requires
that a severance be granted, the matter lies in the discretion of the trial
judge and the question of abuse of such discretion depends upon the facts
of each case. It is incumbent upon a defendant, moving for a separate trial,
to show how he would be prejudiced by a joint trial. If he fails so to do, he
cannot on review complain of the acts of the trial court in denying his
motion. Where defenses are antagonistic and one defendant accuses the other, thus
making it impossible for the defendant asking for a severance to have a fair trial, the
severance should be granted. However, a motion for a severance must set out
the grounds showing the reason for granting the severance. The trial court
passes upon the motion on the grounds advanced at the time it is made.
Any set of circumstances sufficient to deprive a defendant of a fair trial if
tried jointly with another is sufficient to require a separate trial. The
granting of a severance and separate trial is within the sound discretion of
the court but it is a judicial and not an arbitrary discretion. [Citing Fisher,
Albers, Minnecci, Meisenhelter, Tabet, and Varela.]414
The Lindsay court thus followed Minnecci, and not Betson, in stating the antagonism
rule non-exclusively: the court states that a severance should be granted where
defenses are antagonistic and one defendant accuses the other, but does not state
that is the only situation were a severance is justified. The Minnecci/Lehne language,
“Any set of circumstances sufficient to deprive a defendant of a fair trial if tried
jointly with another is sufficient to require a separate trial,” is also non-exclusive
and implies that there could be many situations justifying severance. It also implies
that facts could arise that would entitle a defendant to a severance even if that
defendant failed to establish the need for a severance the usual way by a pretrial
414 Id. at 480-81, 618-19 (italics added). Surprisingly few later cases noticed the condition that
Lindsay borrowed from Minnecci—that “one defendant accuses the other.” See People v. Beard, 35
Ill.App.3d 725, 733 342 N.E.2d 343, 349 (Feb. 10, 1976) (Rechenmacher, J.); People v. Murphy, 93
Ill.App.3d 606, 609, 417 N.E.2d 759, 762 (Feb. 20, 1981) (Mejda, J.).

(2011) J. JURIS 133
motion—thus implicitly challenging the court’s own recitation that “It is
incumbent upon a defendant, moving for a separate trial, to show how he would
be prejudiced by a joint trial. If he fails so to do, he cannot on review complain of
the acts of the trial court in denying his motion.”
Lindsay altered Minnecci’s language in subtle but significant ways that tended to
rigidify the rule. For example, where Minnecci said that a defendant who fails to
show prejudice from a joint trial to the trial court “is not in position to complain”
about denial of severance—and the Minnecci court then went ahead to consider the
issue on its merits anyway—Lindsay said that such a defendant “cannot on review
complain” about the denial. More crucially, Lindsay at least partly restricted the
potential openness and ambiguity in Minnecci’s version of the key segment of the
rule. Where Minnecci said, “The rule is that where there is more than one defendant
and the defenses are antagonistic, and one defendant accuses the other, so that it
will be impossible for the defendant who asked a severance to have a fair trial, the
severance should be granted,” Lindsay said, “Where defenses are antagonistic and
one defendant accuses the other, thus making it impossible for the defendant
asking for a severance to have a fair trial, the severance should be granted.”
Lindsay thus removed any possible ambiguity regarding the impossibility of a fair
trial as an independent factor; the Lindsay version makes it clear that factor is
established if the others are. Thus, where Minnecci’s “so that it will be impossible”
language implied a requirement of a sufficient degree of antagonism, Lindsay’s
“thus making it impossible” language created an automatic definition. Lindsay’s
deletion of Minnecci’s comma between “Where defenses are antagonistic” and “and
one defendant accuses the other” also tends to restrict the possible meanings of
Minnecci by suggesting more strongly that the two factors may really be one and
the same. Whether the Lindsay court intended these changes in meaning is another
question; mostly likely the court thought it was conveying the exact same message
as Minnecci.
A SIMPLE RULE, OFT REPEATED: GRILEC, HENDERSON, AND
THEIR NUMEROUS PROGENY, 1954-1980
The next case in the antagonism lineage to follow Lindsay, People v. Grilec,415
came
almost two years later and ironically seemed oblivious to the Lindsay court’s
conscientious efforts at rule construction. In Grilec, in a very brief, almost
throwaway paragraph at the very end of an opinion focused mostly on statements
used to prove a conspiracy, the court cited Barbaro and Mutter generally on joint
trial and discretionary severance before observing, without further citation of
authority, “The record here discloses not only that the defenses of Grilec and his
415 2 Ill.2d 538, 119 N.E.2d 232 (Mar. 17, 1954) (Bristow, J.).

(2011) J. JURIS 134
codefendant Milosic were not antagonistic, but, on the contrary, they were wholly
consistent and harmonious. The paramount inquiry or test is, are the defenses of
such an antagonistic nature that a severance is imperative to insure a fair trial. We
are of the opinion the trial court did not err in denying plaintiff in error's motion
for a severance.”416
Grilec thus said almost nothing, and effectively decided
nothing, regarding antagonistic defenses—other than that the defenses obviously
were not antagonistic, which made the statement of the antagonism severance rule
entirely gratuitous. That is, it would have been entirely sufficient for the court to
say in effect, as other courts sometimes did, “You do not have a legitimate
antagonistic defenses argument,” without adding, “But if you had a legitimate
argument, here’s what we would have done.”
Grilec followed earlier opinions in referring to a single severance rule that lumped
together antagonistic defenses, problems relating to codefendant statements and
confessions, and any other conceivable grounds for severance all under the rubric
of antagonism. Notably, though, the Grilec court hedged its bets by stating the
supposed rule in a not-entirely-exclusive fashion: although the “paramount
inquiry” concerned antagonism, that implicitly left room for lesser inquiries
bearing on the issue of severance, too. The Grilec court thus steered ambiguously
between the non-exclusive phrasing in Mutter—“Generally . . . a severance should
be ordered [both where a defendant’s statement implicates another defendant]
and, likewise, where the defense of one defendant is so antagonistic to the defense
of the others that a severance is necessary to insure a fair trial” (recognizing
codefendant statements and antagonistic defenses as separate, distinct
categories)417
—and Babaro’s exclusive phrasing: “The right to a severance must
rest upon the ground that [one defendant’s anticipated] defense . . . is so
antagonistic to the [other’s] defense . . . that a severance is necessary to insure a
fair trial.”
Grilec was one in a long line of Illinois cases that found no antagonism and hence
really did not have to use or apply Illinois’ supposed antagonism-severance rule,
but merely mentioned it in passing in dismissing a weak severance argument. This
makes it perhaps slightly ironic that Grilec’s phrasing became a classic statement of
the Illinois severance “rule” that reappeared in dozens of subsequent opinions
through 1985 and was especially popular with later courts seeking to dismiss the
issue of antagonism briefly. Those using the distinctive phrase “paramount
inquiry” are easiest to identify,418
but Grilec also sired a sublineage using the
416 Id. at 546-47, 236.
417 Mutter, 37 N.E.2d at 795.
418 Grilec “paramount inquiry” progeny: People v. Wilson, 29 Ill.2d 82, 193 N.E.2d 449, 454 (Sept.
27, 1963) (per curiam) (citing Grilec); People v. Brinn, 32 Ill.2d 232, 204 N.E.2d 724 (Jan. 21,

(2011) J. JURIS 135
alternate construction “primary question” through People v. Henderson, which cited
two of Grilec’s early progeny to state, “The primary question is whether the
defenses of the several defendants are so antagonistic that a fair trial can be
assured only by a severance.”419
Henderson, like most of Grilec’s progeny, was a
1965) (Solfisburg, J.) (quoting Grilec); People v. Connolly, 33 Ill.2d 128, 131, 210 N.E.2d 523, 525
(Sept. 28, 1965) (Hershey, J.) (citing Wilson (1963)); People v. Bracken, 68 Ill.App.2d 466, 470, 216
N.E.2d 176, 178 (Feb. 10, 1966) (Dempsey, J.) (codefendants’ statements) (citing Grilec); People v.
Gendron, 41 Ill.2d 351, 357, 243 N.E.2d 208, 212 (Nov. 22, 1968) (Ward, J.) (quoting Wilson
(1963) quoting Grilec); People v. Ramey, 115 Ill.App.2d 431, 437, 253 N.E.2d 688, 692 (Oct. 15,
1969) (Leighton, J.) (citing Grilec); People v. Canaday, 49 Ill.2d 416, 425, 275 N.E.2d 356, 361
(Sept. 30, 1971) (Ward, J.) (quoting Grilec); People v. Wilson, 12 Ill.App.3d 59, 297 N.E.2d 790
(May 16, 1973) (Burman, P.J.) (citing Canaday); People v. Brown, 27 Ill.App.3d 569, 327 N.E.2d 51
(Apr. 23, 1975) (Hallett, J.) (citing/quoting Canaday); People v. Lee, 46 Ill.App.3d 343, 360 N.E.2d
1173, 1177 (Mar. 11, 1977) (Alloy, J.) (quoting Canaday quoting Gendron); People v. Colon (69
Ill.App.3d 1021, 387 N.E.2d 956 (Mar. 20, 1979) (Woodward, J.) (citing Canaday); People v. Lee,
86 Ill.App.3d 922, 929, 408 N.E.2d 335, 341 (Jul. 21, 1980) (O’Connor, J.) (mis-citing Yonder for
“Of paramount concern is whether their defenses are so antagonistic that a severance is imperative
to a fair trial.”); People v. Lee, 87 Ill.2d 182, 429 N.E.2d 461 (Nov. 13, 1981) (Simon, J.) (reversing
appellate court’s decision in Lee (1980) (citing Gendron (1968) for “paramount inquiry”).
419 37 Ill.2d 489, 492, 229 N.E.2d 519 (May 18, 1967) (House, J.). Henderson’s “primary question”
sublineage includes: People v. Henderson, 37 Ill.2d 489, 229 N.E.2d 519 (May 18, 1967) (House,
J.) (citing Wilson (1963), Connolly); People v. Trigg, 97 Ill.App.2d 261, 271, 240 N.E.2d 130 (Jun.
10, 1968) (Burman, P.J.) (citing Henderson, Connolly) (slightly alternate construction); People v.
Bernette, 45 Ill.2d 227, 241, 258 N.E.2d 793, 800 (Mar. 24, 1970) (per curiam) (citing Henderson,
Connolly, and Wilson); People v. Brooks, 51 Ill.2d 156, 166, 281 N.E.2d 326 (Mar. 30, 1972)
(Ryan, J.) (citing Henderson); People v. Holtz, 19 Ill.App.3d 781, 789, 313 N.E.2d 234, 241 (May
17, 1974) (Drucker, J.) (citing Henderson and Brooks); People v. Daniels, 35 Ill.App.3d 791, 796,
342 N.E.2d 809, 812 (Jan. 28, 1976) (Johnson, P.J.) (citing Bernette); People v. Hoover, 35
Ill.App.3d 799, 342 N.E.2d 795 (Jan. 28, 1976) (Adesko, J.) (citing Connolly); People v. Appold, 39
Ill.App.3d 814, 815-16, 350 N.E.2d 511, 512 (July 01, 1976) (Trapp, P.J.); People v. Davis, 43
Ill.App.3d 603, 609-10, 357 N.E.2d 96, 101 (Oct. 26, 1976) (Downing, J.) (“Our supreme court has
said numerous times that in determining whether a severance should be granted, the primary
question is whether the defenses of the defendants are so antagonistic that a fair trial can be
assured only by a severance. [Citing Canaday, Yonder, Gendron, Henderson, Brinn, and Betson
(1936)]”); People v. Rudolph, 50 Ill.App.3d 559, 569, 365 N.E.2d 930 (Jun. 27, 1977) (Goldberg,
P.J.) (citing Bernette and Allen); People v. Jayne, 52 Ill.App.3d 990, 1005, 368 N.E.2d 422, 433
(Sept. 2, 1977) (Bua, J.) (citing Daniels); People v. Nickson, 58 Ill.App.3d 470, 482, 374 N.E.2d
804, 812 (Mar. 13, 1978 (Goldberg, P.J.) (citing Brooks); People v. Mertens, 77 Ill.App.3d 791, 396
N.E.2d 595 (Oct. 30, 1979) (Lindberg, J.) (citing Brooks); People v. Jones, 82 Ill.App.3d 386, 399,
402 N.E.2d 746, 755 (Mar. 14, 1980) (Mejda, J.) (citing Canaday and Davis); People v. Crowder, 99
Ill.App.3d 500, 511, 425 N.E.2d 994, 1001 (Jul. 29, 1981) (Lindberg, J.) (citing Mertens (1979))
(court found no abuse of discretion on denial of severance but reversed and remanded for denial
of appellant’s motion to voir dire the jury); People v. Griggs, 104 Ill.App.3d 527, 432 N.E.2d 1176
(Feb. 22, 1982) (McGloon, J.) (alternate construction); People v. Morrow, 104 Ill.App.3d 995,
1006, 433 N.E.2d 985, 994 (Mar. 09, 1982) (Stamos, P.J.) (citing Wilson (1963) (alternate
construction); People v. Ruiz, 94 Ill.2d 245, 257, 447 N.E.2d 148, 152-53 (Dec. 17, 1982) (Ryan,
C.J.) (citing Brooks, Bernette, and Gendron); People v. Columbo, 118 Ill.App.3d 882, 939-40, 455
N.E.2d 733, 775 (Jun. 24, 1983) (Wilson, P.J.) (codefendant statements) (citing Henderson); People

(2011) J. JURIS 136
codefendant statements case that had nothing to do with antagonistic defenses but
for earlier opinions’ improper conflation of the two categories. Grilec itself was not
cited after 1976,420
but it passed its torch to progeny cases—such as People v. Wilson
v. Conley, 118 Ill.App.3d 122, 454 N.E.2d 1107 (Sept. 23, 1983) (Sullivan, J.) (quoting alternative
construction in Morrow (1982)); People v. Hargis, 118 Ill.App.3d 1064, 1074-75, 456 N.E.2d 250,
255 (Nov. 03, 1983) (Mills, J.) (quoting Ruiz (1982)); People v. Griffin, 124 Ill.App.3d 119, 124,
463 N.E.2d 1055 (May 14, 1984) (Harrison, J.) (citing Canaday (1971)). There were also numerous
cases that used alternative constructions derived from Grilec/Henderson: People v. Allen, 36
Ill.App.3d 821, 825, 344 N.E.2d 825, 828 (Mar. 04, 1976 (Dempsey, J.) (citing Grilec for “Persons
jointly indicted for the commission of a crime should be tried together unless their defenses are of
such an antagonistic nature that a severance is necessary to insure a fair trial.”); People v.
Henderson, 39 Ill.App.3d 164, 351 N.E.2d 225 (Jun. 03, 1976) (Dempsey, J.) (companion case to
Allen (1976)) (citing Grilec for, “The governing principle is that persons jointly indicted should be
tried together unless their defenses are so antagonistic that a severance is necessary to insure a fair
trial.”); People v. Morrow, 40 Ill.App.3d 1020, 353 N.E.2d 354, 357 (Aug. 2, 1976) (Simon, J.)
(citing Gendron for “The resolution of a motion for severance turns on whether the defenses are
of such an antagonistic nature that defendants cannot receive fair trial when tried together.”);
People v. Miner, 46 Ill.App.3d 273, 283, 360 N.E.2d 1141 (Feb. 28, 1977) (Karns, J.) (citing Brooks
(1972) for “Separate trials are required only when the defenses of the defendants are so
antagonistic that a fair trial can be assured only by a severance”); People v. Vinson, 49 Ill.App.3d
602, 364 N.E.2d 364, 367 (May 23, 1977) (O’Connor, J.) (citing Brooks for “Generally, co-
defendants are tried jointly unless their defenses are so antagonistic that a severance is required to
assure the defendants a fair trial.”); People v. Ballard, 65 Ill.App.3d 831, 840, 382 N.E.2d 800, 807-
08 (Oct. 20, 1978) (Woodward, J.) (citing Henderson (1976) for “The governing principle is that
persons jointly indicted should be tried together unless their defenses are so antagonistic that a
severance is necessary to insure a fair trial.”); People v. Moore, 65 Ill.App.3d 712, 719, 382 N.E.2d
810, 815-16 (Nov. 2, 1978) (Boyle, J.) (citing Brooks (1972) and Brown (1975) for “It is axiomatic
that co-defendants should be tried jointly together unless their defenses are so antagonistic that a
severance must be granted to insure the defendants of a fair trial. ”); People v. Cain, 70 Ill.App.3d
1, 6, 388 N.E.2d 54 (Feb. 26, 1979) (Buckley, J.) (citing Barbaro and Jayne for “joint trials are
favored unless the defenses of the co-defendants are so antagonistic that a joint trial would prevent
the co-defendants from receiving a fair trial.”); People v. Mumford, 70 Ill.App.3d 395, 405, 387
N.E.2d 910, 917-18 (Mar. 19, 1979) (Goldberg, P.J.) (quoting Canaday quoting Gendron: “It has
been repeatedly held that the issue here is ‘ “* * * whether the defenses are of such an antagonistic
nature that a severance is imperative to secure a fair trial.” ’ ”); People v. Lumpkin, 105 Ill.App.3d
157, 166, 433 N.E.2d 1369, 1376 (Apr. 01, 1982) (Jones, J.) (citing Canaday (1971) and Davis
(1976) for “[A] severance should be granted where the defendants' defenses are so antagonistic
that severance is the only way of assuring a fair trial”); People v. Kinion, 105 Ill.App.3d 1069, 435
N.E.2d 533, 538 (May 05, 1982) (Stouder, J.) (citing Canaday (1971) for “The benchmark by which
the determination of prejudice is made in the more common instance involving co-defendants is
whether defenses are so antagonistic that severance is imperative to require a fair trial.”); People v.
Guyon, 117 Ill.App.3d 522, 453 N.E.2d 849 (Aug. 24, 1983 (McGillicuddy, J.) (citing Canaday
(1971) and Brooks (1972) for “It is well established in Illinois that separate trials are required only
where the defenses of the codefendants are so antagonistic that a fair trial cannot be assured
without a severance.”).
420 See People v. Allen (36 Ill.App.3d 821, 825, 344 N.E.2d 825, 828 (Mar. 04, 1976 (Dempsey, J.)
and People v. Henderson (39 Ill.App.3d 164, 351 N.E.2d 225 (Jun. 03, 1976) (Dempsey, J.).

(2011) J. JURIS 137
(1963),421
People v. Connolly (1965),422
People v. Gendron (1968),423
People v. Canaday
(1971),424
and from the Henderson sublineage, People v. Bernette (1970)425
and People v.
Brooks (1972)426
—that were frequently cited even though they, too, generally said
very little about the issue of antagonistic defenses and usually only concerned
codefendant statements.
Even as Lindsay, Grilec, Henderson, and their multitudinous progeny were helping to
erase the traditional and appropriate distinction between severance based on
antagonistic defenses and severance based upon incriminating codefendant
statements, other cases within the antagonistic defenses lineage, and even more
outside of it, continued to treat codefendant statements as a separate category and
ignored antagonistic defenses jurisprudence or treated it separately. People v. Johnson
(1958)427
was not one of those, though it came close. In a purely codefendant
statements case that cited Lindsay strictly regarding incriminating confessions and
analogized closely to a codefendant statements case that never mentioned
antagonism and showed that it was not necessary to do so,428
the Johnson court
held that under the circumstances, the prosecution’s substitution of “Blank” for a
defendant’s name did not sufficiently overcome the prejudicial impact from
introducing a codefendant’s incriminating confession and concluded, “It is clear
from the foregoing that there was hostility between the two defendants, and that
their defenses to the crime were antagonistic and incompatible.”429
It is unclear
from the Johnson opinion, but it appears entirely possible that defense counsel did
not even raise the issue of antagonism and that the court may have gratuitously
introduced the concept.
People v. Clark (1959),430
however, only mentioned antagonism briefly at the
beginning of the opinion to note that the trial court had allowed the public
defender to withdraw as Clark’s counsel because his defense was antagonistic to
those of his publicly defended codefendants—entirely appropriate in the context
of joint representation—but never once mentioned antagonism again in a lengthy
discussion of proper handling of incriminating codefendant statements that
ironically cited many of the usual suspects regarding the antagonistic defenses rule:
421 29 Ill.2d 82, 193 N.E.2d 449 (Sept. 27, 1963) (per curiam).
422 33 Ill.2d 128, 210 N.E.2d 523 (Sept. 28, 1965) (Hershey, J.).
423 41 Ill.2d 351, 243 N.E.2d 208 (Nov. 22, 1968) (Ward, J.).
424 49 Ill.2d 416, 275 N.E.2d 356 (Sept. 30, 1971) (Ward, J.).
425 45 Ill.2d 227, 258 N.E.2d 793 (Mar. 24, 1970) (per curiam).
426 51 Ill.2d 156, 281 N.E.2d 326 (Mar. 30, 1972) (Ryan, J.).
427 13 Ill.2d 619, 150 N.E.2d 597 (May 21, 1958) (Hershey, J.).
428 People v. Hodson, 406 Ill. 328, 94 N.E.2d 166.
429 Id. at 623-24.
430 17 Ill.2d 486, 162 N.E.2d 413 (Nov. 18, 1959) (Daily, J.).

(2011) J. JURIS 138
Patris, Sweetin, Lindsay, Minnecci, Lehne, Barbaro, Bolton, Meisenhelter, and even Johnson
(1958)—proving that this could be done.431
Clark (1959) would go on to be a
frequently cited authority, often cited together with authorities regarding
antagonistic defenses in later cases that were really only codefendant statements
cases.432
A later example of a purely codefendant statements case that appears in
the antagonism lineage is People v. McVay (1981),433
which noted in passing merely
that a codefendant’s pretrial statements were “antagonistic to McVay’s position at
trial and that they readily lead to an incriminating conclusion against him,” but
otherwise never mentioned antagonism, stated no rule on it, and recognized and
relied upon relatively pure codefendant statements authorities.434
People v. Strayhorn
(1965)435
is an interesting example of an opinion that still understood the
categories of incriminating codefendant statements and antagonistic defenses to
be separate and discussed and rejected each ground in the same opinion—though
it ironically cited Clark (1959) for the rule that “where it appears that the defenses
of the co-defendants are antagonistic, or that confessions made by an accomplice
outside of the presence of a defendant may be admitted in evidence, the motion
for severance should be allowed.”436
SOMETHING OUT OF NOTHING: EARL AND YONDER AS
AUTHORITIES FOR THE ‘RULE,’ 1966-1980
People v. Earl (1966)437
was a very brief, relatively minor murder case that involved
codefendant statements and never mentioned antagonism. The court analogized
to Lindsay, and cited some other opinions outside the antagonism lineage, in
affirming.438
Earl is only interesting at all in this context because despite its total
silence regarding antagonism, it became, indirectly, the supposed source for a
frequent iteration of the Illinois rule on severance of antagonistic defenses.
The murder victim in Earl was found badly beaten and later died.439
After his
arrest, Earl’s codefendant, Cocroft, made a statement that he was with Earl when
431 Id. at 489-92.
432 Clark (1959) was cited 14 times in the antagonistic defenses lineage through 1985 (Strayhorn,
Bernette, Clark (1970), Clark (1972), Brooks, Rosenborgh, Allen, Davis, Lee (1981), Cart, Edwards,
Racanelli, Sullivan (1985), and Trass) and four times afterward, showing remarkable longevity and
persistence, especially for a sound precedent.
433 98 Ill.App.3d 708, 424 N.E.2d 922 (July 28, 1981) (Alloy, J.)
434 Id. at 716, 716-18, 927, 927-28 (citing Clark (1959), Sweetin, Buckminster, Serritello, Ross, Mosher,
and Bruton).
435 35 Ill.2d 41, 219 N.E.2d 517 (Nov. 19, 1965) (Klingbiel, C.J.).
436 Id. at 43-45, 519-20.
437 34 Ill.2d 11, 213 N.E.2d 556 (Jan. 25, 1966) (Hershey, J.).
438 Id. at 13-14, 557.
439 Id. at 12-13, 557.

(2011) J. JURIS 139
Earl put a revolver to the victim’s neck, the victim then cut Earl with a knife, Earl
took the victim a distance away, Cocroft heard fighting, and Earl then reappeared
with the victim’s coat and “a handful of change.”440
Cocroft said he had no role in
the beating or its aftermath.441
Earl contended that Cocroft’s statement was so
prejudicial as to require a separate trial unless the State either did not introduce the
statement in evidence or deleted all references to Earl.442
Citing Lindsay only for
the general rule on joint trial and finding Lindsay closely similar, the court
explained that Cocroft’s written statements were made in Earl’s presence, and Earl
received copies at the arraignment, so there was no surprise; Earl’s own statement
contained the same facts; and the trial court, at a bench trial, ruled that Cocroft’s
statements were not admissible against Earl.443
Finding no abuse of discretion
regarding severance, the court then continued on to address briefly a few other
unrelated issues in an opinion that took less than two pages of the Northeastern
Reporter.444
Earl was thus a minor case with little to say about codefendant statements and
effectively nothing to say about antagonistic defenses. It was appropriately ignored
as a source of precedent for more than three years until it reemerged in People v.
Yonder.445
In Yonder, which involved an ugly, brutal home-invasion-style robbery
and was a more significant and notorious case than Earl in general, defendant
Yonder’s sanity was one of the primary issues for the court, among others.446
In a
side argument, though, both codefendants contended “that they were entitled to
separate trials, and that the trial court's failure to grant their motions for severance
deprived them of a fair trial and denied [codefendant] Guido the right to call
Yonder as a witness.”447
The court declared,
The granting of a separate trial is not a matter of right but falls within the
sound discretion of the trial court which must consider whether the
defenses of those being jointly tried are so antagonistic that a fair trial can
be had only by severance. [Citing Earl.] In reviewing the trial court’s
decision on this issue, we will look only to the petitions filed by the
440 Id. at 13, 557.
441 Id.
442 Id.
443 Id. at 13-14, 557.
444 Id. at 14-15, 557-558. The Earl court cited Albers (1935) on an unrelated point regarding
voluntary confessions. Id. at 15, 558. The only other notable aspect of the case is that it was a pre-
Miranda case in which the defendant made a statement without being advised of his right to
counsel. Id.; see also Miranda.
445 44 Ill.2d 376, 256 N.E.2d 321 (May 28, 1969) (House, J.).
446 Id. at 383-385, 325-327, and generally.
447 Id. at 385-386, 327.

(2011) J. JURIS 140
defendants and the matters alleged therein, and not to the subsequent
happenings at trial. The petitions allege that each defendant will
incriminate the other, that Yonder’s admission of guilt but allegation of
insanity will dilute Guido’s defense of innocence, that Guido will not be
able to put Yonder on the stand as a witness on Guido’s behalf as that he
may be exculpated, and that the jury will be allowed to hear inadmissible
and inflammatory evidence concerning Yonder’s conduct during the
robbery. It is our opinion that the above allegations were mere
apprehensions and that the trial court did not abuse its discretion in
denying the defendants’ motions for severance.448
The Yonder court said no more regarding severance or antagonistic defenses than
this scant paragraph, and cited no authority other than Earl. Earl supported the
boilerplate statements about no right to separate trial and severance being at the
trial court’s discretion; it did not in any way support the statement about
antagonistic defenses. Earl also said nothing about a reviewing court considering
only the defendants’ petitions and not “subsequent happenings at trial,” nor the
insufficiency of “mere apprehensions” of antagonism at trial, and the Yonder court
did not indicate that it did, but rather pulled those rules entirely out of a hat with
no overt precedential substantiation. Had the Yonder court looked to the case from
the antagonism lineage that the Earl court consulted (and to give them the benefit
of the doubt, perhaps they did)—Lindsay—the court would have found a rule
requiring severance of antagonistic defenses along with language stating that the
defendant must show how he would be prejudiced by a joint trial and may not
complain on appeal of the trial court’s denial of his motion if he fails to do so.449
The latter language gives at least partial, implicit support to Yonder’s statements on
looking only to the petitions and ignoring subsequent happenings at trial and mere
apprehensions of antagonism—though Lindsay also included, and Yonder left out,
the overarching rule that “Any set of circumstances sufficient to deprive a
defendant of a fair trial if tried jointly with another is sufficient to require a
separate trial.”450
Yonder’s failure to include that part of the Illinois tradition helped
lead to confusion down the road, as courts focused on the contents of pretrial
motions more than the fairness of the trials that followed. Regardless, though,
Yonder was a case in which antagonistic defenses were a sideshow at best,
apparently thrown in somewhat haphazardly by appellants’ counsel and certainly
addressed cursorily and in passing by the court, making Yonder a weak and
relatively unsuitable source of precedential authority on severance and antagonistic
defenses.
448 Id. at 386, 327.
449 Lindsay (1952) at 481, 619.
450 Id.

(2011) J. JURIS 141
Nevertheless, Yonder became an oft-cited authority both on severance of
antagonistic defenses451
and on looking only to the pretrial petitions and ignoring
both mere apprehensions of antagonism and subsequent happenings at trial.452
451 Cases citing Yonder for a rule requiring severance of antagonistic defenses: People v. Muersch, 4
Ill.App.3d 1003, 1007, 282 N.E.2d 767, 770 (Apr. 10, 1972) (Burke, J.) (citing Earl and Yonder)
(addressing issue briefly in passing); People v. Jackson, 24 Ill.App.3d 700, 706, 321 N.E.2d 420
(Nov. 27, 1974) (Hallett, J.) (citing Yonder and Earl) (addressing issue briefly in passing); People v.
Falconer, 33 Ill.App.3d 563, 565-566, 338 N.E.2d 216, 218 (Nov. 17, 1975) (Dixon, J.) (citing
Yonder) (addressing issue briefly in passing); People v. Davis, 43 Ill.App.3d 603, 610, 357 N.E.2d
96, 101 (Oct. 26, 1976) (Downing, J.) (citing Yonder along with Canaday, Gendron, Henderson,
Brinn, and Betson) (considering issue at length); People v. Hunter, 61 Ill.App.3d 588, 376 N.E.2d
1065, 1071 (Jun. 02, 1978) (Green, P.J.) (citing Yonder and Gendron to support brief observation
in passing on no showing of antagonistic defenses); People v. Clark, 71 Ill.App.3d 381, 398, 389
N.E.2d 911, 923 (May 04, 1979) (Seidenfeld, J.) (citing Yonder); People v. Malaszenko, 76
Ill.App.3d 1, 393 N.E.2d 1350 (Aug. 30, 1979) (Jiganti, P.J.) (citing Yonder in passing); People v.
Jones, 81 Ill.App.3d 724, 726, 401 N.E.2d 1325, 1327 (Mar. 12, 1980) (Green, J.) (citing Yonder
among others) (considering issue in depth); People v. Lee, 86 Ill.App.3d 922, 929, 408 N.E.2d 335,
341 (Jul. 21, 1980) (O’Connor, J.) (misattributing Grilec formulation of rule to Yonder)
(considering issue in depth); People v. Poree, 119 Ill.App.3d 590, 595, 456 N.E.2d 950, 954 (Nov.
18, 1983) (Mejda, J.) (citing Yonder and Murphy (1981)). People v. Brown, 27 Ill.App.3d 569, 576,
327 N.E.2d 51, 55 (Apr. 23, 1975) (Hallett, J.) quoted Earl but avoided citing it for the antagonism
rule and instead cited Canaday (1971); People v. Columbo, 118 Ill.App.3d 882, 939, 455 N.E.2d
733, 775 (Jun. 24, 1983) (Wilson, P.J.) cited Earl only for the basic abuse of discretion standard of
reversal.
452 Cases citing Yonder for reasons other than antagonism-severance rule: People v. Davis, 43
Ill.App.3d 603, 610, 357 N.E.2d 96, 101 (Oct. 26, 1976) (Downing, J.) (mere apprehension
insufficient); People v. Miner, 46 Ill.App.3d 273, 283, 360 N.E.2d 1141, 1149 (Feb. 28, 1977)
(Karns, J.) (mere apprehension insufficient); People v. Lee, 46 Ill.App.3d 343, 360 N.E.2d 1173,
1177 (Mar. 11, 1977) (Alloy, J.) (look only at petitions not subsequent happenings); People v.
Scales, 47 Ill.App.3d 755, 764, 362 N.E.2d 691 (Mar. 24, 1977) (Stengel, P.J.) (mere apprehension
insufficient) (in passing); People v. Vinson, 49 Ill.App.3d 602, 364 N.E.2d 364, 367 (May 23, 1977)
(O’Connor, J.) (discretion to sever); People v. Jones, 81 Ill.App.3d 724, 726, 728, 401 N.E.2d 1325,
1327, 1328 (Mar. 12, 1980) (Green, J.) (considering and extending Yonder in concluding that a
reviewing court may consider statements of counsel in addition to petitions at hearing on
severance motion); People v. Lee, 86 Ill.App.3d 922, 930, 408 N.E.2d 335, 341 (Jul. 21, 1980)
(O’Connor, J.) (look only at petitions not subsequent happenings, but court also aware of need to
sever anytime prejudice appears); People v. McMullen, 88 Ill.App.3d 611, 613, 410 N.E.2d 1174,
1176 (Sept. 24, 1980) (Mills, P.J.) (State argues pretrial motion demonstrating prejudice required,
court follows Jones (1980) in also considering statements of counsel at pretrial motion hearing);
People v. Powell, 95 Ill.App.3d 93, 98, 419 N.E.2d 708, 712 (Apr. 09, 1981) (Webber, J.) (look only
at petitions not subsequent happenings); People v. Brophy, 96 Ill.App.3d 936, 945, 422 N.E.2d 158
(May 28, 1981) (Linn, J.) (defendant must demonstrate prejudice before trial); People v. Lee, 87
Ill.2d 182, 186, 429 N.E.2d 461, 463 (Nov. 13, 1981) (Simon, J.) (defendant must demonstrate
prejudice before trial); People v. Ruiz, 94 Ill.2d 245, 257, 447 N.E.2d 148, 152 (Dec. 17, 1982)
(Ryan, C.J.) (no automatic right to separate trial); People v. Columbo, 118 Ill.App.3d 882, 939-940,
941, 455 N.E.2d 733, 775, 776 (Jun. 24, 1983) (Wilson, P.J.) (look only at petitions not subsequent
happenings, mere speculation as to antagonism insufficient); People v. Molstad, 101 Ill.2d 128,

(2011) J. JURIS 142
Although Yonder said and decided little on the issue, what it did say was relatively
short, snappy, and superficially easy to understand, and as usual, later opinions
favored that sort of language over more complicated analysis. Also, although
Yonder was something of a junk precedent regarding severance of antagonistic
defenses, its popularity might have been enhanced because the United States
Supreme Court denied certiorari, even though that decision almost certainly had
nothing to do with Yonder’s brief paragraph on severance and antagonistic
defenses.453
Even as so many courts dutifully repeated the version of the rule stated in Grilec,
Henderson, or Yonder, other opinions, perhaps wisely, mentioned antagonism only
briefly or in passing,454
or avoided stating a rule on antagonistic defenses or
mentioning them at all.455
136, 461 N.E.2d 398, 403 (Feb. 01, 1984 ) (Clark, J.) (mere apprehension insufficient); People v.
Daugherty, 102 Ill.2d 533, 544, 545, 468 N.E.2d 969, 974-975 (Jun. 29, 1984) (Simon, J.)
(distinguishing Yonder regarding mere apprehension insufficient, slightly bending rule on look
only at petitions not subsequent happenings); People v. Zambetta, 132 Ill.App.3d 740, 745, 477
N.E.2d 821, 825 (Apr. 29, 1985) (Strouse, J.) (mere apprehension insufficient); People v. Duncan,
133 Ill.App.3d 489, 478 N.E.2d 1125, 1130-1131 (May 16, 1985) (Stouder, J.) (mere apprehension
insufficient); People v. Bean, 109 Ill.2d 80, 100, 485 N.E.2d 349, 358 (Oct. 03, 1985) (Simon, J.)
(look only at petitions not subsequent happenings); People v. Byron, 116 Ill.2d 81, 92, 506 N.E.2d
1247, 1251 (Feb. 20, 1987) (Goldenhersh, J.) (mere apprehension insufficient); People v. Collins,
186 Ill.App.3d 35, 45, 541 N.E.2d 1308, 1314 (Jun. 30, 1989) (Manning, P.J.) (mere apprehension
insufficient); People v. Rice, 286 Ill.App.3d 394, 402, 675 N.E.2d 944, 950 (Dec. 30, 1996) (
O’Brien, J.) (look only at petitions not subsequent happenings, but court also aware of need to
sever anytime prejudice appears).
453 In my experience, lower courts, in their quest for safety from reversal by higher courts,
sometimes make more out of “cert. den.” than it likely warrants. In People v. Baer, 35 Ill.App.3d 391,
400, 342 N.E.2d 177, 184 (Jan. 9, 1976) (Sullivan, J.), the court cited People v. Rosenborgh, 21
Ill.App.3d 376, and its cert. denied status, for the severance rule that “the test is whether the
defense of one of the defendants is so antagonistic to the other as to deny a fair trial.” Ironically,
Rosenborgh nowhere mentioned antagonism or an antagonistic defenses severance rule; it only
addressed codefendant statements as an independent issue and cited Bruton and Clark (1959) in one
very brief paragraph. See Rosenborgh at 688. See also POSNER, HOW JUDGES THINK, supra note 6, at
50 (discussing ambiguity of certiorari petition denials).
454 People v. Pulaski, 15 Ill.2d 291, 155 N.E.2d 29 (Nov. 26, 1958) (Hershey, J.); People v.
Aldridge, 19 Ill.2d 176, 180, 166 N.E.2d 563, 565 (Mar. 31, 1960) (Schaefer, J.); People v. Williams,
30 Ill.2d 166, 167, 195 N.E.2d 715, 715-16 (Jan. 22, 1964) (House, J.); People v. Arnold (91
Ill.App.2d 282, 233 N.E.2d 764 (Jan. 22, 1968) (Smith, P.J.)); People v. Ross, 41 Ill.2d 445, 244
N.E.2d 608 (May 29, 1968) (Kluczynski, J.); People v. Rhodes, 41 Ill.2d 494, 498, 244 N.E.2d 145,
147 (Jan. 29, 1969) (House, J.); People v. Humphrey, 129 Ill.App.2d 404, 414, 262 N.E.2d 721, 726
(Oct. 2, 1970) (Abrahamson, J.); People v. Watkins, 3 Ill.App.3d 560, 564, 278 N.E.2d 156 (Jan. 31,
1972) (Seidenfeld, J.); People v. Rahn, 15 Ill.App.3d 170, 304 N.E.2d 161 (Nov. 7, 1973) (Trapp,
J.); People v. Williams, 39 Ill.App.3d 449, 350 N.E.2d 135 (June 9, 1976) (Adesko, J.); People v.
Williams, 52 Ill.App.3d 81, 367 N.E.2d 167 (Aug. 9, 1977) (Stamos, J.); People v. Bailey, 60
Ill.App.3d 1046, 1053, 377 N.E.2d 273, 278 (May 25, 1978) (Dieringer, J.); People v. Muellner, 70

(2011) J. JURIS 143
CROSS-CONTAMINATION: JOINT-REPRESENTATION CASES IN
THE ANTAGONISTIC DEFENSES LINEAGE, 1953-1980
As we have seen, Bopp (1917) implicitly indicated that defendants with conflicting
interests should not be represented by the same counsel, and Rose (1932),
following Bopp, stated explicitly, “Every defendant who is unable to employ
counsel for his defense has a right to have an attorney appointed by the court who
can, and will upon the trial, present to the court and jury the defendant’s full
defense, untrammeled by any conflicting interests of a codefendant.” Neither case
said anything about antagonistic defenses outside the joint-representation context.
The next major joint representation case to appear in the antagonism lineage was
People v. Dolgin (1953), which involved two codefendants jointly indicted for
forgery and counterfeiting to evade Illinois’ cigarette tax.456
Among other issues on
Ill.App.3d 671, 388 N.E.2d 851 (Mar. 21, 1979) (Karns, J.); People v. Hunter, 61 Ill.App.3d 588,
376 N.E.2d 1065 (Jun. 2, 1978) (Green, P.J.); People v. Johnson, 74 Ill.App.3d 1037, 393 N.E.2d
40 (July 19, 1979) (Linn, J.); People v. Goodman, 75 Ill.App.3d 369, 372, 393 N.E.2d 1233, 1236
(Aug. 9, 1979) (Karns, J.); People v. Jones, 82 Ill.App.3d 386, 402 N.E.2d 746 (Mar. 14, 1980)
(Mejda, J.); People v. Stevenson, 90 Ill.App.3d 903, 413 N.E.2d 1339 (Nov. 20, 1980) (Jiganti, J.);
People v. Manna, 96 Ill.App.3d 506, 421 N.E.2d 542 (Apr. 30, 1981) (Nash, J.); People v. Cart (102
Ill.App.3d 173, 429 N.E.2d 553 (Dec. 2, 1981) (Nash, J.); People v. Griggs, 104 Ill.App.3d 527, 432
N.E.2d 1176 (Feb. 22, 1982) (McGloon, J.); People v. Olbrot, 106 Ill.App.3d 367, 435 N.E.2d
1242 (May 3, 1982) (O’Connor, J.); People v. Jones, 116 Ill.App.3d 233, 451 N.E.2d 1358 (July 14,
1983) (Johnson, J.); People v. Fuller, 117 Ill.App.3d 1026, 454 N.E.2d 334 (July 19, 1983) (Perlin,
J.); People v. Sanford, 116 Ill.App.3d 834, 452 N.E.2d 710 (July 29, 1983) (Mejda, J.); People v.
Jackson, 119 Ill.App.3d 951, 458 N.E.2d 59 (Dec. 8, 1983) (Johnson, J.); People v. Duncan, 133
Ill.App.3d 489, 478 N.E.2d 1125 (May 16, 1985) (Stouder, J.); People v. Visnack, 135 Ill.App.3d
113, 481 N.E.2d 744 (May 21, 1985) (Stamos, P.J.); People v. Morrison, 137 Ill.App.3d 171, 484
N.E.2d 329 (Aug. 19, 1985) (Campbell, J.); People v. Walker, 136 Ill.App.3d 177, 483 N.E.2d 301
(Aug. 27, 1985) (Barry, J.).
455 People v. Berry, 37 Ill.2d 329, 226 N.E.2d 591 (May 18, 1967) (Klingbiel, J.); People v. Rhodes,
41 Ill.2d 494, 498, 244 N.E.2d 145, 147 (Jan. 29, 1969) (House, J.) (appellant raised, but court gave
no rule on, antagonism); People v. Clark, 130 Ill.App.2d 558, 562, 265 N.E.2d 191, 194 (Nov. 18,
1970) (Davis, P.J.) (same as Rhodes); People v. Clark, 50 Ill.2d 292, 278 N.E.2d 782 (Jan. 28, 1972)
(Underwood, C.J.) (codefendant statements case resulting in reversal never mentioned
antagonism); People v. Merritt, 16 Ill. App. 3d 72, 305 N.E.2d 579 (Nov. 28, 1973) (Dieringer, J.);
People v. Rosenborgh, 21 Ill.App.3d 676, 315 N.E.2d 545 (Jul. 12, 1974) (Lorenz, J.); People v.
Howard, 34 Ill.App.3d 145, 149, 340 N.E.2d 53, 56 (Nov. 14, 1975) (Lorenz, J.); People v.
Bradford, 84 Ill.App.3d 493, 411 N.E.2d 869 (June 2, 1980) (McGloon, J.); People v. Nash, 90
Ill.App.3d 612, 413 N.E.2d 16 (Nov. 5, 1980) (Downing, J.); People v. Bluitt, 98 Ill.App.3d 19, 424
N.E.2d 62 (July 09, 1981) (Linn, J.); People v. Moore, 115 Ill.App.3d 266, 450 N.E.2d 855 (May 31,
1983) (McGloon, J.); People v. Racanelli, 132 Ill.App.3d 124, 476 N.E.2d 1179 (March 15, 1985)
(Mejda, P.J.) (Pincham, J., dissenting); People v. Sullivan, 136 Ill.App.3d 293, 483 N.E.2d 324
(Aug. 28, 1985) (McNamara, J.); People v. Williams, 136 Ill.App.3d 126, 483 N.E.2d 306 (Aug. 30,
1985) (Barry, J.).
456 415 Ill. 434, 437, 114 N.E.2d 389, 391 (May 20, 1953) (Fulton, J.).

(2011) J. JURIS 144
appeal, including alleged juror tampering and attempted bribery, Dolgin claimed
he was denied trial counsel of his own choice.457
Both codefendants were
represented by the same counsel until the eve of trial, and on the day before trial,
both defendants moved to continue the trial until after the upcoming November
elections because their case had become a “ ‘political football.’”458
The trial court
denied the motion, which gave no other grounds and did not mention antagonistic
defenses.459
On the day of the trial, the joint counsel moved to sever the trials on
the ground that a prosecution witness would testify against one defendant and so
negatively impact the other defendant. The court denied the motion. Counsel then
sought to withdraw as counsel for one of the defendants “on the ground that
Lieb’s and Dolgin’s defenses would be antagonistic.” The court denied this
motion, also.460
Another attorney then filed a motion to continue the case and to
intercede on Dolgin’s behalf, arguing that Dolgin needed separate counsel and
that the new attorney needed additional time to prepare the case.461
The court
denied the continuance but allowed the new attorney to step in to represent
Dolgin, and the trial went forward.462
Lieb was acquitted, but Dolgin was
convicted and sentenced to prison.463
Regarding Dolgin’s argument that he was denied his constitutional right to
counsel of his choice, the court reasoned that because the only ground for the
original counsel’s motion to withdraw was antagonistic defenses, the argument
could “have merit only if the defenses of Lieb and [Dolgin] were, in fact,
antagonistic.”464
The court’s review of the record, however, found “nothing to
indicate any incompatibility of interest.”465
Although the court obviously
mentioned antagonism, this was purely in the context of conflicting interests
requiring representation by separate counsel; Dolgin was in no way concerned with
the question of separate trials for codefendants with antagonistic defenses. The
court did, notably and unfortunately, use the term “antagonistic” in conjunction
with the low-level definition “any incompatibility of interest,” which would cause
confusion in later joint-representation cases. Dolgin’s statement specific to the facts
of that case—the joint counsel’s suspicious last-minute motion to withdraw as
counsel for one defendant on the sole, particular ground of antagonistic defenses
could only have merit if there were antagonistic defenses—would also later be
457 Id. at 445-46, 394-95.
458 Id. at 446-47, 395.
459 Id. at 447, 395.
460 Id.
461 Id. at 447, 395-96.
462 Id. at 447, 396.
463 Id. at 437, 391.
464 Id. at 448, 396.
465 Id.

(2011) J. JURIS 145
mistranslated in People v. Banks (1968), a case involving separate trials but not joint
representation, as “Only when the interests of the joint defendants are in fact
antagonistic must the court grant separate trials. [Citing Dolgin.]”466
The Banks
court showed no awareness that Dolgin was a joint representation case, or that
joint representation was a different issue. The same was true of People v. Battle
(1969), which in rejecting a weak severance argument cited Dolgin along with Banks
for, “Joint defendants will be entitled to a severance of their trials only where it is
shown that their individual defenses are in fact antagonistic to each other.”467
In People v. Clark (1959), the court allowed the public defender to withdraw as
Clark’s counsel because his “defense was antagonistic to those of [his
codefendants].”468
In People v. Wolff (1960), the court found no basis for the court-
appointed attorney’s claim of conflicting interests between the two defendants,
and antagonism was never mentioned.469
People v. Friedrich (1960) is a highly anomalous joint-representation case that did not
offer any holding on severance for antagonistic defenses because the trial court
granted such a severance.470
The joint counsel for two defendants informed the
court that he foresaw antagonistic defenses by his two clients and requested either
a severance of their trials or withdrawal of his representation from one or the
other.471
The trial court, responding to what became a rather complicated
equation, and due to concerns that it would be unethical to allow the counsel to
represent both defendants even in separate trials if there were indeed a conflict of
interest between them, ruled that the counsel in question could only represent
defendant Friedrich if Friedrich and his codefendant (Zahler) agreed to be tried
jointly and stipulated that they did not have conflicting interests or defenses.472
Although Friedrich later had a separate trial at which he was convicted, he was
forced to go to trial with a counsel different from the original counsel of his
choice.473
Although noting the trial court’s earnest effort to protect the defendant’s right to a
counsel free of conflicts, the Friedrich court explained, perceptively,
466 103 Ill.App.2d 180, 186, 243 N.E.2d 669, 672 (Dec. 10, 1968 (McNamara, J.).
467 116 Ill.App.2d 375, 383, 254 N.E.2d 90, 95 (Nov. 12, 1969) (Burke, J.)
468 17 Ill.2d 486, 487, 162 N.E.2d 413, 415 (Nov. 18, 1959) (Daily, J.).
469 19 Ill.2d 318, 321-323, 167 N.E.2d 197, 198-199 (May 18, 1960) (Daily, J.).
470 20 Ill.2d 240, 248, 169 N.E.2d 752, 755 (Sept. 29, 1960) (Hershey, J.).
471 Id. at 244-246, 755.
472 Id. at 245-48, 755-56.
473 Id. at 242, 250, 753, 758.

(2011) J. JURIS 146
The grounds which require a sverance are different from those which
prevent an attorney from representing conflicting interests. A severance
should be granted where the defenses are antagonistic or the
circumstances are such that it would be unfair to require a joint trial.
[Citing Lindsay.] We believe the facts set forth in Zahler's motion were
sufficient to show that he could not obtain a fair trial if tried jointly with
defendant and, therefore, were sufficient to require a severance.474
The court, noting the trial court’s agreement that severance was justified but
faulting its imposition of a requirement that the codefendants must have separate
counsel even in separate trials, held that there was nothing to suggest that there
would have been any ethical violation in allowing the original chosen counsel to
represent both defendants in separate trials.475
Thus, for the trial court to require
Friedrich to retain a different attorney deprived him of his right to counsel.476
So Friedrich, a complicated opinion regarding a muddled situation, clearly offered
no holding on severance for antagonistic defenses; it did not need to. Rather, it
assumed the rule in Lindsay, and distinguished that from the rule for joint
representation by counsel. Its comments regarding severance for antagonistic
defenses were unquestionably dicta, and it is noteworthy that the court identified
two grounds for severance—(1) antagonistic defenses and (2) circumstances
making a joint trial unfair—and selected the latter, not the former, in concluding
that severance was appropriate. It was also avoided by later cases in the
antagonism lineage.477
Although Friedrich may have muddied the waters, People v. Chapman (1965)478
was
the first joint representation case to lump the joint-representation conflicting
interests rule together with the antagonistic defenses rule and so blur the
boundaries between the two properly distinct categories. Regarding the appellant’s
claim of conflicting interests between himself and his jointly represented
codefendant, plus a gratuitous argument that “ ‘co-defendants in a criminal case
are necessarily adverse to one another,’ ”479
the court noted, “It is only when the
interests of the joint defendants are in fact antagonistic that the court must grant
474 Id. at 251, 758.
475 Id. at 252, 759.
476 Id. at 255, 760.
477 Friedrich was only cited briefly in Arnold (1968) at 285, 765 (“Circumstances which warrant the
appointment of separate counsel do not necessarily mandate separate trial and vice-versa.”) and Lee
(1980) at 930, 341 (necessity of separate counsel, alone, does not also require separate trials).
478 66 Ill.App.2d 124, 214 N.E.2d 313 (December 27, 1965) (Kluczynski, J.)
479 Id. at 127, 315.

(2011) J. JURIS 147
separate trials or require separate legal representation. [Citing Dolgin at 448.].”480
Dolgin, however, never said anything about when to sever trials, either at page 448
or anywhere else. The court went on to cite Wolff, Rose, and Bopp on conflicting
interests before determining that there was nothing in the record suggesting any
“adverse or antagonistic” interests between the codefendants, or anything “that
could indicate such incompatibility or conflict.”481
In addition to raising the
antagonism-severance rule entirely unnecessarily, Chapman dangerously mixed
together such potentially different concepts as “adverse,” “antagonistic,”
“incompatibility,” and “conflict” indiscriminately.
Just as the contagion of the antagonistic defenses rule jumped inappropriately into
the joint representation lineage in Chapman, predictably, it jumped back to the
antagonistic defenses lineage from Chapman. People v. Van Hyning (1966)482
concerned only a severance argument based upon codefendants’ statements, not
joint representation, but the court observed, “The question of joint or separate
trials for defendants—who are jointly indicted—has given rise to many
problems,” added, “However, the law is rather clear” [always a dangerous
statement for a court to make], then quoted Chapman at length, including
irrelevant language from Wolff, Rose, and Bopp regarding conflicting interests in the
joint representation context along with Chapman’s misstatement of the Dolgin
holding: “ ‘It is only when the interests of the joint defendants are in fact
antagonistic that the court must grant separate trials or require separate legal
representation.’ ”483
Van Hyning thus inappropriately mixed together not only
antagonistic defenses and codefendant statements, but joint representation, also—
a sort of trifecta of precedential confusion. The Chapman language also reappeared
in later joint representation cases.484
The Chapman-Van Hyning transaction occurred within Illinois’ mid-level appellate
court system. Yet the antagonism-severance rule jumping to the joint-
representation lineage also occurred at the Illinois Supreme Court level, and
without reliance on Chapman, in People v. McCasle (1966), a joint representation case
in which the appellant contended that the trial court should have appointed
separate counsel for him on its own motion.485
The McCasle court politely
answered, in a single paragraph dismissing a clearly weak argument, that there was
no inconsistency in the codefendants’ defenses and no impropriety in the public
480 Id.
481 Id.
482 72 Ill.App.2d 168, 219 N.E.2d 268 (Jun. 23, 1966) (Davis, J.).
483 Id. at 177-178, 272.
484 See People v. Dickens, 19 Ill.App.3d 419, 311 N.E.2d 705, 708 (May 21, 1974) (Eberspacher, J.);
People v. Holman, 43 Ill.App.3d 56, 59, 356 N.E.2d 1115, 1117 (Oct. 26, 1976) (T.J. Moran, P.J.).
485 35 Ill.2d 552, 556, 221 N.E.2d 227, 230 (Nov. 14, 1966) (Underwood, J.).

(2011) J. JURIS 148
defender’s joint representation of both codefendants.486
The court added in
passing, “As a general rule, jointly indicted defendants should be jointly tried
unless their defenses are antagonistic, and a severance is neither required nor
authorized where their defenses are not inconsistent. [Citing Wilson, Brinn (1965),
Aldridge (1960), and Grilec, none of which involved joint representation.]”487
This
brief, well-intended reference to the supposed general rule on severance of
antagonistic defenses led to McCasle’s use as an authority in People v. James (1970), a
severance case not involving joint representation, where the court cited McCasle in
stating, “A severance should only be granted where the defenses are antagonistic
or inconsistent”488
—notably rearranging and garbling McCasle’s language to
suggest that antagonism and inconsistency meant the same thing, such that merely
inconsistent defenses required severance.
Later joint representation cases also recycled McCasle’s language about antagonistic
defenses. People v. Smith (1974) used it verbatim;489
People v. Holman (1976), a
combined joint representation and antagonistic defenses case in which the
appellants faulted the trial court both for not appointing separate counsel and for
not severing their trials based upon one defendant’s pretrial statement that
incriminated the other, cited both McCasle and Chapman in stating an exclusive
version of the rule: “The court must grant separate trials or require separate legal
representation only when the defenses of joint defendants are so antagonistic that
a fair trial would be otherwise impossible.”490
As in Van Hyning, the Holman court
in its brief discussion finding no error tended to conflate joint representation with
antagonistic defenses and codefendants’ statements.491
People v. Ware (1968) was a joint representation case that resulted in a reversal for
denial of right to counsel after one defendant pleaded guilty and testified at trial
that his jointly-represented codefendant, who had pleaded not guilty, had
participated in the crimes charged.492
The court recited, “Co-defendants have a
right to separate counsel if their positions are antagonistic. [Citing Dolgin.] Here,
there was complete antagonism between the positions of the defendant[s.]”493
In
offering its tacit definition of complete antagonism, the Ware court, appropriately,
considered only the joint representation context. Opinions after Ware, however,
went in different directions regarding at what stage of the sentencing process one
486 Id.
487 Id.
488 130 Ill.App.2d 532, 263 N.E.2d 705, 708 (Nov. 04, 1970) (Abrahamson, J.).
489 19 Ill.App.3d 138, 145, 310 N.E.2d 818, 823 (May 02, 1974) (Smith, P.J.).
490 43 Ill.App.3d 56, 59, 356 N.E.2d 1115, 1117 (Oct. 26, 1976) (T.J. Moran, P.J.).
491 Id. at 59-60, 1117-1118.
492 39 Ill.2d 66, 67, 233 N.E.2d 421, 422 (Jan. 19, 1968) (Ward, J.).
493 Id. at 68, 422.

(2011) J. JURIS 149
codefendant testifying against a jointly represented codefendant constituted
antagonistic interests and required separate representation,494
as well as whether
complete antagonism was required. Ware, of course, never said complete
antagonism was required and merely found it in the facts of Ware, but some later
courts missed that nuance and built “complete antagonism” into the Ware “rule.”
The antagonism-severance rule further infected the case law on joint
representation in People v. Bass (1968), a joint representation case in which the
appellant contended that the trial court had a sua sponte duty either to appoint
separate counsel or sever the trials.495
The Bass court answered that it “fail[ed] to
perceive any conflict between the interests of the co-defendants,” noting, “In the
instant case, it has not been demonstrated that the interests of the co-defendants
were conflicting or antagonistic. Neither Robbins nor Bass was attempting to
establish his defense by implicating the other—a classic example of conflicting
and antagonistic interests which would justify a severance.”496
Aside from this
slightly gratuitous reference to antagonism, there was no further discussion of
antagonism; the court followed McCasle and affirmed.497
Notably, the level of
antagonism mentioned in Bass—each defendant actively implicating the other—
was much higher than the level of conflicting interests that would justify separate
counsel in a joint representation case.
Yet the mention of antagonism in cases such as Bopp and Dolgin, together with the
pulling in of the antagonism-severance rule in Friedrich and Chapman and,
particularly, the references to antagonism in fact, complete antagonism, or mutual
finger-pointing in Chapman, Ware, and Bass, inevitably caused confusion about the
494 See People v. Johnson, 46 Ill.2d 266, 267-68, 265 N.E.2d 869, 870 (Sept. 22, 1970) (Crebs, J.)
(distinguishing Ware and finding no divided allegiance of counsel where a jointly represented
codefendant “obtained complete immunity and dismissal of the charges against him” before
testifying); People v. Forbis, 12 Ill.App.3d 536, 539-40, 298 N.E.2d 771, 774 (Jul. 05, 1973)
(Craven, P.J.) (distinguishing Ware and finding no attorney conflict where a jointly represented
codefendant pleaded guilty and was sentenced before testifying, and “obtained complete immunity
and dismissal of the charges against him” before testifying and so “had nothing to gain”); People v.
Augustus, 36 Ill.App.3d 75, 76-77, 343 N.E.2d 272, 273 (Feb. 18, 1976) (Jones, J.) (finding attorney
conflict under same situation as in Forbis); People v. Halluin, 36 Ill.App.3d 556, 344 N.E.2d 579
(Mar. 12, 1976) (Moran, J.) (reviewing the dispute at length, rejecting reasoning in Forbis, finding
antagonistic interests between defendants where attorney could not wholeheartedly impeach
testifying client on behalf of client on trial, and holding that the “confidentiality of attorney-client
communications persists after sentencing of the client”) (Also noting, “Most of the cases
verbalizing the ‘antagonistic position’ principle are ones in which certain situations were found not
to involve antagonistic positions.”).
495 101 Ill.App.2d 259, 261, 243 N.E.2d 305, 307 (Sept. 19, 1968) (Sullivan, J.).
496 Id. at 262, 307.
497 Id. at 263, 308.

(2011) J. JURIS 150
appropriate standard for determining when conflicting interests of codefendants
required separate representation. The standard for antagonistic defenses was
supposed to be relatively high; the standard for conflicting interests in the joint
representation context, relatively low. Yet the intrusion of terms and concepts
from the antagonistic defenses context into the joint representation context left
later courts struggling with where to set the standard and how to define
antagonistic or conflicting interests. As with the antagonistic defenses lineage, it
was easy for this process to become garbled.
For instance, in People v. Durley (1972), in what would become a standard appellate
technique, Durley intertwined ineffective assistance of counsel and antagonistic
defenses arguments by contending that his trial counsel was ineffective for failing
to seek an evidentiary hearing regarding his clients’ antagonistic defenses.498
The
court briefly discussed and dismissed Durley’s arguments, citing Dolgin to state,
non-exclusively, “It is unquestioned that co-defendants should have a right to
separate counsel if their positions are antagonistic,” but finding no demonstration
of conflicting interests to support the bare allegations in the petition.499
Two years
later, however, in People v. St. Pierre (1975), a joint representation case in which the
court rejected St. Pierre’s claim of conflicting interests from his codefendant’s
statement that St. Pierre stabbed the victim given that St. Pierre himself testified at
trial that he stabbed the victim,500
the court, citing Durley and Ware, declared,
exclusively, “The rule is well settled that separate counsel is required only where the
interests of co-defendants are in fact antagonistic,” and found that the defendants
“did not have antagonistic defenses.”501
The St. Pierre court thus took what was
fact-specific language in Dolgin—for Dolgin’s motion for substitution of counsel
based solely and specifically on antagonistic defenses to have merit, there
obviously had to be antagonistic defenses—and Durley’s non-exclusive statement
of the rule—jointly represented codefendants are entitled to separate counsel if
they have antagonistic positions—and changed that into an exclusive rule—
separate counsel only if there were antagonistic interests. The court also muddled
antagonistic interests together with antagonistic defenses. In People v. Barren (1975),
the court gave a non-exclusive version: “[C]onflict of interest exists where one
attorney represents two or more co-defendants whose defenses are antagonistic to
each other, and in such case, they are entitled to separate counsel. [Citing Johnson
(1970); Ware.]”502
The court thus identified antagonistic defenses as a situation
where conflicting interests existed, but did not say that was the only such
498 53 Ill.2d 156, 157-58, 290 N.E.2d 244, 245 (Nov. 30, 1972) (Davis, J.).
499 Id. at 160, 246.
500 25 Ill.App.3d 644, 651, 324 N.E.2d 226, 231 (Jan. 22, 1975) (Johnson, J.).
501 Id.
502 32 Ill.App.3d 78, 81, 335 N.E.2d 779, 782 (Oct. 06, 1975) (Alloy, J.).

(2011) J. JURIS 151
situation. In People v. Benka (1983), the court offered a different non-exclusive
version of the Chapman rule—“[D]efendants should have separate trials and
separate representation where the defenses are antagonistic”503
—which probably
unintentionally added the idea that the same counsel should never represent two
defendants with antagonistic defenses, even in separate trials.
People v. Dickens (1974) was strictly a joint representation case in which counsel
made the losing argument that joint representation by the public defender
constituted ineffective assistance per se.504
The court likely could have dismissed
this weak argument more summarily, but instead quoted Chapman at length,
including its exclusive “only when” version of the severance/separate
representation rule.505
The court also distinguished Johnson (1970) and Ware, noting
that the Ware court found “ ‘complete antagonism’” between the defendants, but
in Dickens “there was no showing that the[] defenses were completely
antagonistic.”506
Later, the court held that because “there was no showing of an
actual conflict of interest between the defendants,” the ineffective assistance claim
was without merit.507
Although the Dickens court merely stated that the defenses in
Dickens were not completely antagonistic while distinguishing Ware, later cases
would infer that Dickens set a rule requiring complete antagonism of defenses.
As with antagonistic defenses, in the joint representation context, statements of a
rule on antagonism were usually gratuitous, because usually there was clearly no
conflict in the defenses. For instance, in People v. Brown (1976), on the day of trial,
the privately retained joint defense counsel moved to withdraw as counsel for
either defendant “on the ground that a conflict of interest was present due to
potentially antagonistic defenses.”508
The Brown court reviewed earlier joint
representation opinions as well as antagonistic defenses or severance cases such as
Canaday and Humphrey before finding the defendants’ defenses “consisistent and
complementary, not antagonistic.”509
The court of course gave no holding
regarding severance of antagonistic defenses, but only borrowed the reasoning
about them from earlier opinions. People v. Jones (1976) involved the stock
argument that a joint trial counsel’s failure to move for a severance denied his
clients effective assistance of counsel.510
The court cited McCasle along with
Muersch (1972), a minor case that said almost nothing about antagonistic defenses
503 117 Ill.App.3d 221, 225, 453 N.E.2d 71, 74 (Aug. 18, 1983) (Van Deusen, J.).
504 19 Ill.App.3d 419, 422, 311 N.E.2d 705, 708 (May 21, 1974) (Eberspacher, J.).
505 Id. at 423, 708.
506 Id. at 422-23, 708.
507 Id. at 423, 708-09.
508 36 Ill.App.3d 416, 418, 343 N.E.2d 700, 701 (Mar. 10, 1976) (Stouder, J.).
509 Id. at 702-03, 419-20.
510 40 Ill.App.3d 850, 858, 353 N.E.2d 375 (Apr. 28, 1976) (Johnson, P.J.).

(2011) J. JURIS 152
and nothing about joint representation, for the antagonism-severance rule, and
found no inconsistency in the defenses.511
In People v. Clark (1976), by contrast, the
court credited the defendants’ argument that their joint counsel’s failure to request
a severance denied them effective assistance of counsel;512
the court held that
although it benefitted one defendant to have a second defendant’s confession read
with the defendants’ names deleted, it would have benefitted a third defendant to
have the names included.513
Clark is also notable for being seemingly the first case
in which counsel used the term “mutually antagonistic,” a term of art in many
other jurisdictions that never caught on in Illinois.514
Similarly, in People v. Ishman
(1978), a joint representation case, a defendant moved for and was granted a
severance based upon “ ‘irreconcilable differences’” in his and other codefendants’
defenses, which appears to be the first and only importation of another term of art
common in other jurisdictions into Illinois case law.515
In People v. Wilder (1977), the court rejected Wilder’s argument that she received
ineffective assistance of counsel because the public defender represented both her
and another defendant in separate trials, noting that the other defendant never
testified against her and observing, “Clearly such a conflict exists where one
defendant testifies at the trial of the other or at a joint trial in a manner
antagonistic to the interests of the other defendant, or where two defendants
assert antagonistic defenses at a joint trial. There is no inherent conflict of interest
where several defendants are represented by the same counsel and assert
inconsistent defenses at separate trials so long as one does not testify against the
other. [Citing Johnson (1970), Ware, McCasle, and Halluin (1976), along with Wilson
(1963).]”516
In its examples, Wilder revealed an understanding that antagonistic
interests and antagonistic defenses could represent different categories.
511 Id.
512 42 Ill.App.3d 472, 475, 355 N.E.2d 619, 621 (Sept. 29, 1976) (Alloy, P.J.).
513 Id. at 474, 476, 620, 622.
514 For the federal circuits, see generally Dewey, supra note 58. The category is also common in
many other states.
515 61 Ill.App.3d 517, 518-19, 378 N.E.2d 179 (May 11, 1978) (Eberspacher, P.J.). Similarly, in
People v. Holtz, one of Henderson’s progeny, a defendant claimed, seemingly for the first time in
Illinois jurisprudence (and unsuccessfully), that his and a codefendant’s defenses were “ ‘mutually
exclusive’ “—which, along with “mutually antagonistic” and “irreconcilable,” is the third (and
most common) of the three standard terms of art used to justify severing conflicting codefendants
in federal jurisprudence and in most other states. See People v. Holtz, 19 Ill.App.3d 781, 313
N.E.2d 234 (May 17, 1974) (Drucker, J.); People v. Brown, 27 Ill.App.3d 569, 574, 327 N.E.2d 51,
54; Dewey, supra note 58, generally. Illinois courts steadfastly resisted incorporating these new and
foreign terms, however.
516 48 Ill.App.3d 13, 14-15, 362 N.E.2d 436, 437-38 (Apr. 25, 1977) (Reardon, J.).

(2011) J. JURIS 153
People v. Meng (1977)517
was a joint representation case that recognized that its
holding was limited to the joint representation context and distinguished that
context from that of antagonistic defenses. The defendants were two teen-aged
boys accused of burgling the home of a recently deceased friend.518
Both
defendants were represented by the county public defender, although each was
separately represented by a different attorney from the public defender’s staff.
Meng contended that he was denied effective assistance of counsel because of a
potential conflict of interest for the public defender that arose due to “
‘antagonism’” between his defense and that of his codefendant.519
In addressing
this issue, the court reviewed Ware, Johnson, and Augustus (1976),; it also noted the
holding in Dickens (supposedly) requiring a “ ‘complete antagonism’” of defenses
to show an actual, rather than merely a potential, conflict of interest to require
separate counsel.520
The Meng court followed other authorities in holding that the
possibility of conflicting interests was enough to trigger Illinois’ per se separate
counsel rule, and the court declined to follow Dickens.521
The court specifically
declined to decide whether the codefendants’ conflicting defenses justified a
severance, as the defendants had requested before trial.522
Justice Karns dissented,
arguing that the only issue worthy of consideration was whether Meng’s severance
motion should have been granted, and concluding that it was appropriately
denied.523
Karns called for sticking to Dickens’ supposed rule, and he quoted at
length from Chapman, including Chapman’s mischaracterization of the holding in
Dolgin.524
Various other joint representation cases mentioned antagonism or antagonistic
defenses or positions only briefly or in passing.525
Others (perhaps wisely) never
mentioned the issue or term at all.526
517 54 Ill.App.3d 357, 369 N.E.2d 549 (Oct. 21, 1977) (Eberspacher, J.).
518 Id. at 359, 550.
519 Id. at 360, 551.
520 Id. at 363-64, 553. Notably, although Dickens did require an actual conflict of interests, it did not
hold that complete antagonism was required; it used that language only in distinguishing Ware. See
discussion supra.
521 Id. at 364, 553.
522 Id.
523 Id. at 366, 555 (Karns, J., dissenting).
524 Id.
525 See People v. Robinson, 42 Ill.2d 371, 375, 247 N.E.2d 898, 900 (Mar. 27, 1969) (Ward, J.);
People v. Cheatham, 6 Ill.App.3d 1079, 1081-82, 286 N.E.2d 597, 598-99 (Aug. 16, 1972)
(Abrahamson, J.); People v. Robinson, 17 Ill.App.3d 310, 314-15, 308 N.E.2d 88 (Jan. 18, 1974)
(English, J.); People v. Hastings, 72 Ill.App.3d 816, 390 N.E.2d 1273 (May 21, 1979) (McGloon,
J.).; People v. Williams (94 Ill.App.3d 241, 418 N.E.2d 840 (Mar. 12, 1981) (Linn, J.).
526 See People v. Forbis, 12 Ill.App.3d 536, 298 N.E.2d 771 (Jul. 05, 1973) (Craven, P.J.); People v.
Richardson, 16 Ill.App.3d 830, 831-33, 306 N.E.2d 886, 888-889 (Jan. 30, 1974) (Dixon, J.); People

(2011) J. JURIS 154
A BELATED FIRST EFFORT TO DEFINE ANTAGONISM AND THE
REDISCOVERY OF BRAUNE: DAVIS, 1976
After more than thirty years of peaceful slumber following Meisenhelter (1942),527
Braune reappeared in Illinois’ antagonistic defenses lineage in People v. Brown
(1975),528
a relatively brief, minor rape case. The most notable thing about Brown
regarding antagonistic defenses is that Brown’s counsel and the court both treated
antagonistic defenses as an entirely separate issue, discussed in an entirely separate
part of the opinion, from that of improper questioning of witnesses by a
codefendant’s counsel, for which issue alone Braune was cited and distinguished.529
v. Husar, 22 Ill.App.3d 758, 318 N.E.2d 24 (Sept. 10, 1974) (Leighton, J.); People v. Augustus, 36
Ill.App.3d 75, 343 N.E.2d 272 (Feb. 18, 1976) (Jones, J.).
527 Braune was mentioned briefly in the context of criminal abortion in People v. Fedora, 393 Ill. 165,
184, 65 N.E. 2ed 447 (Jan. 23, 1946), a murder case that had nothing to do with abortion or
severance and is thus outside the antagonism lineage. At least one other intervening case also
perhaps, by its language, reflected an awareness of Braune (or else perhaps of De Luna v. United
States, 308 F.2d 140 (5th Cir. 1962), the case that was the “fountainhead” of all federal
jurisprudence on antagonistic defenses and likely drew nationwide judicial attention) : People v.
Higginbotham, 56 Ill.App.2d 140, 205 N.E.2d 273 (Mar. 11, 1965), which was penned by Presiding
Justice Smith, perhaps the most captivating literary stylist ever to sit on any Illinois appellate court,
and thus may deserve quoting at some length:
We begin with the general proposition that co-indictees should be tried together. [Citing Lindsay
(1952).] Most propositions have exceptions and this one is no different. If co-defendants do in fact
have antagonistic defenses, such as each pointing a self-exonerating finger at the other, they
obviously can't be tried together, if we are to avoid the spectacle of the prosecution sitting back
while defendants engage each other in combat. Too, separate trials are sometimes had where one
has confessed and implicated the other. A cautionary instruction to give effect to the confession
only as to the confessor may serve only to emphasize the very matter the jury is told to forget, as in
the story, by Mark Twain, of the boy told to stand in a corner and not think of a white rabbit.
This latter circumstance is not present, and the only question is whether their respective defenses
were antagonistic. The two victims testified that both defendants robbed them. In defense,
defendants both denied it, and neither said the other did. The co-defendant stated that he and the
victims exchanged the amenities of the day-it happened to be January 1-while Higginbotham
testified that he was out of carshot and didn't know what co-defendant was saying or doing. This is
certainly not a ‘He did it, I didn't’ defense, rather a ‘I didn't do it, and that's all I know’ defense
from Higginbotham's standpoint, and from co-defendant's, a ‘I didn't do it, and he didn't either’
defense. So far as we can see, these defenses dovetail perfectly, or to borrow a musical analogy, the
defenses are contrapuntal, not dissonant. We discern no conflict, and it is little wonder that
counsel did not move for severance.
Higginbotham, at 142-43, 273-74. Notably, Judge Smith clearly indicated an understanding that
incriminating codefendant statements and antagonistic defenses are separate, distinct categories.
528 27 Ill.App.3d 569, 327 N.E.2d 51 (Apr. 23, 2975) (Hallett, J.).
529 Id. at 575-76, 578-79, 55, 57.

(2011) J. JURIS 155
So although Braune reappeared in Brown, it ironically was not yet recognized to
constitute authority on antagonistic defenses.
People v. Davis (1976),530
a non-fatal stabbing case that came a century after White
and forty years after Braune, was the first case in which a court attempted to
carefully define the meaning of “antagonism,” and recognized the lack of a proper
definition, after so many decades in which courts had used the term more
cavalierly. The Davis court, of course, came too late, and was only a mid-level
appellate court, so its efforts to clarify the situation were hamstrung by earlier
decisions that could not be harmonized properly, and Davis inevitably rested on
the same shoddy precedential foundation as earlier Illinois cases.
The Davis court cited Canaday on discretionary severance, Gendron on severance
where fairness requires it, and Brooks and Henderson for “Separate trials are required
when the defenses of the several defendants are so antagonistic that a fair trial can
be assured only by a severance.”531
Davis’ trial motion for severance was based
only on a bald, conclusory allegation that codefendant Huff’s defense was
antagonistic, and the trial court denied the motion after the prosecution agreed to
delete any inculpatory statements from Huff regarding Davis.532
On appeal, the
Davis court explained that Huff’s statement had in no way implicated or
prejudiced Davis, citing Brooks and Clark (1959).533
Thus Davis, like so many earlier
cases in the antagonism lineage, was a codefendant statement case involving no
antagonism.
Returning to the “rule,” the court stated, “Our supreme court has said numerous
times that in determining whether a severance should be granted, the primary
question is whether the defenses of the defendants are so antagonistic that a fair
trial can be assured only by a severance. [Citing Canaday, Yonder, Gendron,
Henderson, Brinn, and Betson.]”534
The court added,
Although we have found no Illinois case defining the term ‘antagonistic’,
Webster's Third New International Dictionary defines it as ‘characterized
by or resulting from antagonism: marked by or arising from opposition,
hostility, antipathy, or discord’. Huff testified and was available for cross-
examination by defendant. Huff testified that neither he nor defendant
stabbed Negron. Huff also denied making any statement to Eshoo. On the
530 43 Ill.App.3d 603, 357 N.E.2d 96 (Oct. 26, 1976) (Downing, J.).
531 Id. at 608, 100.
532 Id. at 609, 100-101.
533 Id. at 609-10, 101.
534 Id. at 610, 101.

(2011) J. JURIS 156
other hand, defendant testified that Huff stabbed Negron. Though the
defenses contradicted, Huff was helpful to defendant, not antagonistic. To
be antagonistic there must be a showing of true conflict in the several
defenses; for example, where each defendant attributes the cause of an
accident to the wrongful actions of the other [citing Clark (1972)]; where
each defendant condemns the other and each declares the other will testify
to facts exculpatory of himself and condemnatory of his co-defendant
[citing Braune for the second time since 1942 in the antagonism lineage];
where the co-defendant's confession implicating defendant is received into
evidence with only an instruction to the jury limiting its admissibility to the
maker of the statement [citing Sweetin for the first time since 1959 in the
antagonism lineage535
]; and where each co-defendant makes an admission
or confession orally and the references to the co-defendant applying for
the severance are not eliminated from the testimony [citing Barbaro].536
Finding no prejudice, the court analogized to the one-sided antagonism in
Minnecci, where Minnecci accused a codefendant of the murder but neither
codefendant accused him, so Minnecci, like Davis, experienced no antagonism or
prejudice.537
Thus the Davis court earnestly endeavored to illuminate a murky, muddled
situation. Its invocation of the general definition of “antagonistic” in Webster’s
dictionary was problematic, however, in that the appropriate legal definition of
antagonism in the antagonistic defenses context—unlike the joint representation
context—required a very strict, strong meaning. Although the dictionary’s
mention of hostility and antipathy may have been strong enough to strike the right
tone, other terms such as opposition and discord were not and opened the door
to a looser, more liberal definition of “antagonism” as mere disagreement or
contradiction. The court’s requirement of “true conflict” did not help much,
either, since “conflict” also could be watered down to mean mere contradiction.
In citing its four examples of true conflict, the Davis court was properly inclusive,
not exclusive—“for example”—but the court followed earlier authorities in
improperly lumping purely codefendant statement issues together with
antagonistic defense situations as in Braune. For all its conscientious efforts to
research the issue, even reaching back to mostly forgotten cases such as Sweetin,
Betson, Minnecci, Barbaro, and above all, Braune, the Davis court remained a prisoner
of the garbage in the system that by then had muddled the meaning of
535 Five other cases cited Sweetin strictly regarding codefendant statements or other issues between
1959 and 1976.
536 Id. at 610-11, 101-02.
537 Id. at 611, 615, 102, 105.

(2011) J. JURIS 157
antagonistic defenses in Illnois case law for almost fifty years. Ironically, the facts
in Davis also were evidently clear-cut enough that the court could have reached its
conclusion with much less effort. Notably, the Davis court gave an entirely
separate, lengthy discussion of an alleged Bruton violation, again citing Brooks and
Clark (1972) along with Clark (1959) and clearly recognizing this as a separate
issue.538
People v. Miner (1977)539
was a rare example of an Illinois case that involved some
degree of actual antagonism beyond conflicting codefendant statements. The case
involved a pair of codefendants who sought to steal gasoline from a local mine
and wound up killing a mine guard with a shotgun blast to the face.540
Before trial,
the defendants moved for a severance based only upon somewhat differing
statements.541
Although the defendants’ statements differed regarding why they
went to the mine, both statements agreed that appellant Miner was holding
codefendant Ledbetter’s shotgun when it discharged, killing the victim.542
The trial
court denied the motions, finding they raised a mere apprehension of antagonistic
defenses; the appellate court agreed.543
At trial, however, both defendants testified.
Miner claimed he was innocently holding the shotgun and “ ‘playing’” with the
hammer of the weapon while chatting non-threateningly with the victim.544
The
court recounted: “Paul Ledbetter's testimony, however, clearly indicated that
defendant was brandishing the shotgun and demanding gasoline from Starnes
when the weapon discharged. Ledbetter's testimony was obviously antagonistic to
defendant's defense.”545
Confronted with this situation, the Miner court stated the various relevant rules,
citing Brown (1975) regarding joint trial; Brooks for “Separate trials are required
only when the defenses of the defendants are so antagonistic that a fair trial can be
assured only by a severance”; Rhodes (1969) on a pretrial showing of prejudice
from joint trial; Davis and Yonder for the need for specific grounds and the
insufficiency of mere apprehension of antagonism; and Pulaski (1959) regarding
the trial court’s discretion to deny severance absent a showing of prejudice.546
538 Id. at 611-13, 102-04. That the United States Supreme Court did not treat the Bruton situation as
antagonism might have helped some Illinois courts to rediscover that codefendant statements and
antagonistic defenses were actually separate, distinct issues.
539 46 Ill.App.3d 273, 360 N.E.2d 1141 (Feb. 28, 1977) (Karns, J.).
540 Id. at 275-78, 1143-45.
541 Id. at 283-84, 1149.
542 Id.
543 Id. at 284, 1149.
544 Id.
545 Id.
546 Id. at 283, 1149.

(2011) J. JURIS 158
Although the court accepted that Ledbetter’s actual testimony was antagonistic to
Miner’s defense, the court distinguished Braune, where “evidence was presented,
prior to trial, indicating that each defendant would take the witness stand and
testify to a set of facts which would be exculpatory of the witness and
condemnatory of his codefendant.”547
Although Miner contended that “a showing
of antagonistic defenses may be made either prior to or during trial[,]” the court
concluded that such a proposition “contradict[ed] several supreme and appellate
court opinions which clearly state that a showing of antagonistic defenses must be
made prior to trial.”548
The court also concluded that notwithstanding the antagonistic testimony from
Ledbetter, Miner had received a fair trial.549
The only evidence admitted at trial
that would have been inadmissible in a separate trial was a witness’ testimony
regarding a statement by Ledbetter.550
The court noted that although Miner was
not denied his confrontation rights as to this statement because Ledbetter testified
and was thus available for cross-examination (citing Bruton and its progeny), that
alone did not make the statement admissible unless all references to the non-
declaring codefendant were deleted.551
Because a state’s witness testified regarding
a similar extrajudicial statement from Miner, though, the court followed earlier
authority in holding that “the admission of a codefendant's statement inculpating
the defendant was harmless error where the defendant had made substantially
similar statements and where the other evidence against the defendant was
convincing and adequate to support a guilty verdict.”552
The court similarly held
that Ledbetter’s counsel’s cross-examination of Miner concerning a prior
conviction for burglary was also harmless error “[i]n light of the overwhelming
evidence of [Miner’s] guilt[.]”553
A TRIFECTA OF PRECEDENTIAL CONFUSION: PRECUP, 1977
People v. Precup (1977)554
involved three jointly represented codefendants all
convicted of armed robbery of a tavern.555
On appeal, two of the defendants
alleged plain error from the trial court’s failure to sever their trials sua sponte
based upon their differing alibis in statements they made to police, particularly
547 Id. at 284, 1149-50.
548 Id. at 284, 1150.
549 Id. at 285, 1150.
550 Id.
551 Id.
552 Id.
553 Id. at 286, 1151.
554 50 Ill.App.3d 23, 365 N.E.2d 1007 (Jul. 5, 1977) (Trapp, J.).
555 Id. at 25, 1008.

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