Thursday, November 20, 2008

Return of Subpoena Hearing in Nicholas Sheley Trial

Yesterday, November 19, I attended another return of subpoena hearing in the Nicholas Sheley case. Sheley 29, is accused of killing eight people in a two-state killing spree last June. Knox County, IL gets the first crack at trying Sheley in connection to the killing spree. Sheley is facing 17 counts for the death of Ronald Randall, 65, in Galesburg, IL. If convicted Sheley will face the death penalty.

I waited to post this entry until I could get copies of the motions and orders that were entered yesterday. Unfortunately, when I went to the courthouse this morning I was told the court reporter still had the paperwork, so I wouldn't be able to get copies. I was told to check tomorrow. I was a little lost taking notes yesterday because there was a lot of back and forth between the attorneys and the judge referencing the motions. I will do the best I can without them for now. If I'm able to go to town tomorrow, I will try again. I will post them on DocStock or another one of those document holding sites and post a link if I'm able to get them.

It's 9:45 a.m. when I arrive at the Knox County courthouse for the 10 a.m. hearing. When I get to the door of the courthouse I notice a Sheriff's patrol car pulling up with two unmarked cars behind it. This looks like it might be Sheley. I'm a little surprised because he didn't attend the last return of subpoena hearing(it took about 5 minutes). Perhaps there will be more to the hearing today than just return of subpoenas. I go through security and make my way up the steps to the second floor courtroom.

When I reach the top of the stairway I'm stopped by security and told I have to wait a moment. They must be transferring prisoners. This is a very old building (built in 1882-1884) and there is only one elevator and the stairway winds around the elevator shaft. It takes just a moment before I hear the doors to the elevator open and out comes Nicholas Sheley with his normal entourage of Sheriff's personnel. Once Sheley was taken into a room off of the courtroom I was allowed to pass.

When I get to the double doors of the courtroom, I see there aren't many people in the the courtroom even though there seems to be a hearing going on. I take a seat in the press section right behind a local reporter and mouth a hello to one of Ronald Randall's sisters seated over on the prosecution side of the gallery. This is a hearing to revoke the probation of a sex offender. Part of the terms of his probation was to abstain from drinking alcohol. A probation officer was testifying, followed by a substance abuse counselor. To my surprise, even though there was testimony that this young man had violated his probation by drinking and hadn't finished a treatment program, his probation wasn't revoked. I don't know the circumstances of this case so I'll reserve judgement. During the testimony, one of Sheley's defense team, Jeremy Karlin, sits in my row along with girl who looks like she could be his sister and the Public Defender's administrative assistant. The attorney looks at the clock several times, I wonder to myself if he has another appointment.

A 5 minute recess is called. The reporter I'm sitting behind turns and asks how much time I have put into my last entry, "Sheley's trail of terror. I laugh and tell her hours! I tell her part of the reason it took so long was because I tried to only include information that was reported in more than one place. She said there was one thing in my entry that may not be accurate, it has not been officially confirmed that the woman victim in Rock Falls (Kilynna Blake,20) was pregnant. I really appreciate her telling me this because I'm trying to be as accurate as possible in my reporting. If any of Kilynna's family or friends have read this, please accept my apologies. I hope reading this didn't cause any additional stress for you. I will correct the entry when I get home.

At 10:25 a.m. the Ninth Circuit Court Judge James Stewart calls court to order in the Sheley case. He tells the bailiff to have Sheley brought in. A door to my left opens and I can hear the clickety clank of Sheley coming in fully shackled with his arms full of a shuffle of paperwork. He looks pretty much the same as he did at the last hearing(Halloween) except his head is shaved close again. Usually Sheley takes a good look around the gallery before sitting, but today he just sits down. I have yet to see anyone in court on his behalf, other than his attorneys and he wants to fire them and defend himself. We'll just have to wait and see if this happens.

Judge Stewart acknowledges for the record that at the defense table is Public Defender James Harrell, co-counsel Jeremy Karlin and Sheley. At the table for the state is States Attorney John Pepmeyer, Illinois Assistant Attorney General Micheal Atterberry and Steve Plazibat, another lawyer from the Attorney Generals office.The Attorney Generals office was asked to assist with Sheley's case by Knox and Whiteside Counties.

Atterberry starts things off by telling the court the state has a supplemental motion for authorization to proceed with some DNA testing. He goes on to say they have 2 subpoenas for 417 (DNA) materials, but have reason to believe they have been returned to court.

Pepmeyer wants to put something on the record with respect to the Missouri lab supplying their answer to discovery.

Harrell says something I didn't catch ( he has a little habit of talking down to the desk, I swear it's not me.LOL)
Karlin says he has a motion for discovery.

Atterberry's response to the motion is that the people were notified by the Rockford crime lab that they had stopped testing because it may be necessary to consume all of some evidence. He asks the court to authorize the defense expert to observe the procedure. ( Judge must approve expenditures that are charged to the Capital Litigation fund.)

Karlin shoots back there seems to be some discrepancy. He goes on to say that Atterberry just said the evidence "may" be consumed and the motion says "shall". (OK, this won't be a 5 minute hearing!) Karlin goes on to say, they don't know the guidelines of labs for these type of notifications. Until their expert is able to see the 417 material they would not be able to conclude there is or isn't enough material to be divided. For example, there could be a large red/brown stain or just a nanogram which isn't visible to the naked eye. He says that even though Sheley has expressed his desire for the testing to move forward, the defense asks for a compromise, that the lab not be permitted to test until the expert is present.

Atterberry says the state is in agreement with that, but, if the defense expert is there and there is a disagreement they should turn to the court for guidance.

Judge Stewart grants the motion and says this should be obtained in a written order within 7 days.

Karlin says discovery in regard to ???? oops I missed it

Atterberry says the people's proposal, is a good use of the court's time, counsel will receive 417 material and if there is additional material they will supply it as it comes. Therefore the state asks not to deal with this motion until the defense sees the 417 and has a chance to go over it.

Karlin responds if the state is asking for a continuance, it's on their motion. It appears to him this is not really an objection to the motion but just testing to see if the defense really wants the discovery.

Atterberry says they are not asking for a continuance, another hearing can be scheduled for this discovery.
Judge Stewart asks the state to explain their objections to the motion. Atterberry says they will just take the objections in the order they are on the motion:
  1. ISP Master Command QNA Manual - Atterberry states the request for the entire manual is overly broad and cumbersome and requests information that isn't relevant to this case. He says something about page 3 of the motion (sure wishing I had a copy of these motions) the people are complying to all protocol, which is the same quality standards for the entire state. Atterberry continues the state has no problem with providing manuals that are relevant to this case. Karlin confirms for the record the state's objections is the motion is overly broad, cumbersome, and immaterial.
  2. Atterberry says the second request is also overly broad but there is no objection because the state has already substantially complied and will continue to do so.
  3. Atterberry says the state does object to the material and item C. A job description of everyone in the chain of custody is not relevant. and...
  4. 3H subsection 5 is not material or relevant to have an organizational chart for each lab.

Karlin replies the court would have been better served with an earlier response so they could have had the expert here. The intent of the motion is not to have the entire chain of custody, just from the lab. They want to be assured they have all the standard material. The reason they want an organizational chart is so they can determine who is in charge in the chain of command if there are any disputes. This is information that may lead to other information down the road. Defense is not looking for home addresses, etc....and they argue it is not over broad. They don't want the resume' of the truck driver who takes the material from the police to the lab, however; they do want the resume of the crime scene technician.

Atterberry says the Illinois Supreme Court is clear about 417 discretionary ex closures must show materiality.

Judge Stewart rules request is overly broad, requests should be made for manuals as specifically needed. 3 C. modification - denies request of curriculum other than that required by the Supreme Court. Chain of custody will be disclosed and if an organizational chart already exists he has no problem with that.

Karlin confirms the judges ruling for the record and asks for the table of contents to the manual.

Atterberry objects as this is more than the Supreme Court allows.

Karlin says 417 rule provides a minimum, not a ceiling.

Stewart says the State Police manual has protocols that have no relevance and defense must specify what it needs. With that, Stewart moves on to return of subpoenas, he asks the defense to make a record to what the defense has received. He points to a large stack of envelopes on the court reporters desk and says it's all there and there is some for the state too.

Harrell has another discovery issue, he wants to make record of what DNA the state still has to supply. He adds he hasn't received anything from the state about the "incident" at the jail but understands other clients of his at the jail have been questioned and is worried this may create a conflict of interest for him with his clients.

My notes don't say what the judges response was. I was focusing on Sheley at this point, trying to see if he was following all this. He has remained quiet throughout the hearing today and even seems a little aloof, makes me wonder if he is taking medication, he's not drowsing, just seems a little disconnected.

Pepmeyer says that all of the consumptive DNA testing is completed at the Morton lab, inclusive of all, except that found last week. The state has received all from the Rockford lab except the potential consumptive material mentioned earlier.

The judge orders that within 7 days. At 10:56 a. m. Stewart says the court will recess and reconvene in thirty minutes so counsel from both sides can go through the subpoenaed information that has come in.

Whew, this is taking a lot longer than I expected. I need some coffee. I head out of the courthouse to see if I can find some java. Ronald Randall's sisters were outside having a smoke so I stopped to talk for a moment. One of the sisters tells me that her brothers truck was a dark blue almost black instead of the dark gray that has been reported, she says it's a small thing but it bugs her because it's not accurate. I assure her I will change my entry....little things like that bug me too.

I got a parking spot right in front this morning and don't want to lose it, so I just stop and grab my purse before I head off on foot to find some coffee. The first place I saw with coffee was the Coney Island. This little restaurant has been in this spot for at least 50 years and mmmm you haven't had a hot dog until you have one of these. Since I don't have cash on me, I'm forced to order a couple dogs so I can use my debit card. LOL I couldn't have planned that better! I eat my coney dogs and head back to the courthouse.

Court resumes at 11:40 a.m.

Pepmeyer says that the Rockford crime lab complied with the 417.

Karlin agrees they received responses but doesn't agree at this point they are in full compliance.

Karlin tells the court over 60 media organizations complied with the request to submit news clippings relating to coverage of Sheley. (he named them all but I think I'll save us both from that)Four of those sent replies that information could be found on the organizations’ web sites. Over 30 news agencies had not responded to the subpoenas as of Wednesday. Two agencies filed motions to quash the subpoenas.

Judge Stewart asks Pepmeyer if he has revised the order that the court had requested changes on. Pepmeyer says no but it can be finished shortly. Stewart says he will recess the court now but he wants the order signed today so he will reconvene at 1:30 and wants both sides here.

Court went back on the record at 1:39 p.m. Everyone is back except Jeremy Karlin from the defense.

Pepmeyer submits the revised order of contributing delay. Harrell looks it over and approves it.

The court also received two notices of communication and a notice of disclosure regarding Dr. Terry Killian, the court-appointed fitness expert evaluating Sheley’s competency to stand trial and possibly represent himself. Killian has until Nov. 26 to submit his opinion as to whether Sheley has any mental or physical disability that would impair his ability to stand trial. Killian also must determine whether Sheley is able to review and organize discovery documents, think coherently and maintain focus for several hours at a time.

Sheley’s fitness must be established to determine whether he is fit to stand trial, competent to waive his right to counsel and competent to represent himself before he is permitted to fire his attorneys and represent himself.

The next hearing will be a case management hearing is scheduled for 10 a.m. Dec. 31.

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