Saturday, January 31, 2009

Sheley Decides To Keep His Lawyers After All

The title of this entry accurately sums up the outcome of the case management hearing that I attended today at the Knox County Courthouse in Galesburg, IL. for the murder case of accused spree killer Nicholas Sheley. However, it only describes the final 10-15 minutes of the approximately 90 minute hearing. Never the less, for the sake of being thorough I will present an “in the courtroom” report for the entire hearing.

I made my way up to the 2nd floor courtroom at 1:00 for the case management hearing that is scheduled to start at 1:30. The only people in the courtroom, besides court security, are the family of the victim in this case, Ronald Randall. They are seated in the front row on the prosecution side of the courtroom. I usually sit in the first seat on the center aisle, in the second row behind them where I have a great view of Sheley and can see both sides of the courtroom equally well, but today I slide all the way in to the last seat. There is a pole I can lean against and there may be a lot of people here today so I won’t need to move….yes I’m a little lazy today. LOL

At 1:15 the attorneys for both sides start to filter into the courtroom and by 1:25 both attorneys for the defense, Public Defender, James Harrell and his court appointed co-counsel Jeremy Karlin are in their seats. At the prosecution table are Knox County States Attorney John Pepmeyer; and 3 attorneys from the Illinois Attorney General’s Office, AAG Michael Atterberry, AAG Steve Plazibat, and AAG William Elward.

Whiteside County States Attorney Gary Spence enters with the prosecution team and takes a seat behind me, he will be up to bat next in the prosecution of Nicholas Sheley for the deaths of 5 people in his county. The Attorney General’s Office will also assist Mr. Spence in Whiteside County . When Sheley is done in Whiteside County he will go down to Festus, Missouri to stand trial for the deaths of a couple who were visiting from Arkansas. You can see a complete timeline of the alleged killing spree here.

There are 4 members of accredited press in the front row on the defense side today. A few more of Mr. Randall’s family have joined me in the 2nd row and a 5th member of the press takes my normal seat next to them. In the second row on the defense side are two men and a woman who are professional in appearance and seem to have something to do with the defense. I am so focused on trying to figure out who they were, I didn’t even notice Sheley being brought in…..which is kind of odd because normally even if you don’t see him in his bright orange jail garb you hear the clickety clank of his shackles….told you I am tired today… he is seated with 3 or 4 Sheriff’s deputies surrounding him.

In September , Sheley told Judge Stewart he wanted to fire his attorneys and represent himself. Sheley said he has been “blown off” by his attorneys and accused them of “fast lawyer talk” and said he wanted his lawyers to adhere to his request for a speedy trial and not their own wishes. He filed a handwritten motion (sealed by the court) that said he and his lawyers have a conflict of interest, he accused them of ineffective counsel and dishonesty. Harrell and Karlin countered there was bonified doubt that Sheley was fit to stand trial and to wave his right to representation. The Judge ordered a fitness evaluation to be done of Sheley. You can see that order here.
At a fitness hearing held December 22 ( here) it was determined that Sheley is fit to stand trial; however, Stewart suggested that the court could have additional counsel appointed to present case law to Sheley so he can make a decision about representing himself without his perceived conflicting interests of his attorneys. The issue of fitness to represent himself wasn’t determined yet either. Those issues and the state’s and defense’s response to Sheley’s motion (remains sealed ) are to be dealt with at today’s hearing.

Ninth Circuit Court Judge James Stewart enters and calls court to order. He addresses both parties about briefs that were filed. John Pepmeyer says regarding the entry issue Steve Plazibat will address…Judge Stewart interrupts and asks about the motion filed in opposition.

Jeremy Karlin says that briefs were filed specifying Sheley address the issue of self representation, he asks that an attorney be appointed so that he doesn’t have to have an attorney….either he wants one or he doesn’t. He goes on to say the 2nd point the state raises in the 2nd Supplemental Response calls for the court to meet in ex parte fashion to determine to what level of inquiry and review what has been done so far as allegation made. Allegations made don’t even rise to argument of conflict rather a disagreement between counsel and defendant and strategy. Karlin says the state and defense are in agreement on the issue that Sheley is not entitled to additional counsel.

( I will try to get copies of the Motions and Responses discussed in court today, hopefully then this will make more sense, at times the attorneys and the court seem to speak in an almost cryptic fashion, of course they know what they are referencing, we don’t. Please be aware I am summarizing their statements from my notes, when using direct quotes I will signify as such.)

Atterberry states before conflict issue, need to address issue of counsel of choice, Sheley has made unclear statements- he wants no court appointed counsel and on page 29 says limited by court order. (Sheley’s handwritten motion? This remains sealed.) Atterberry continues the state has no objection to private counsel. What is his desire?

Plazibat takes his turn….regarding the conflict issue, if Sheley’s allegation was clear and spelled out it could be determined if there is or isn’t merit, the allegations are ambiguous. Court needs to flesh out what Sheley alleges is conflict. If the court determines there is conflict, there is no objection to additional counsel being appointed.

Pepmeyer further addresses the issue of Sheley being limited by court order in seeking private counsel. The Jail Administrator at the Knox County jail has been responsible for enforcement of the gag order which requires having an attorney from the defense present before phone calls can be made. Pepmeyer presents an idea…that a private phone could be used, the number dialed, if found that Sheley speaking to other than counsel the phone could be shut down. A certain time could be set for these calls to be made. He continues that if Sheley procures a private attorney this is all unnecessary.

Karlin says that he and Harrell don’t wish to stand in the way of Sheley seeking private counsel, but stands against the state monitoring calls to an attorney, if he has the funds to hire a capital qualified attorney.

Pepmeyer asks the jail administrator (he is seated in the back row on defense side) about a time that would be preferable. The administrator says 10 or 2, not at meal times. He asks would the phone then just be turned on? He suggests a few alternatives:
Out of the pod - dial a number for him, hand him the receiver, therefore not listening to the call. In the pod - phone turned on and off.

Karlin prefers the 1st option, out of the pod. Judge Stewart says that Sheley has not been prohibited the right to private counsel. He had 90 days before the Public Defender was appointed and no attorney appeared before the court, therefore Sheley had the opportunity before he called a press conference. Stewart rules that Sheley has between 10 and 11oclock and 2 and 3oclock for the next 30 days to call any capital qualified attorney he wishes, if there is an abuse of the privilege that’s on him. He also modifies the gag order for 30 days that the defense need not be present for these calls.

Stewart says that appointing additional counsel is for the issue of conflict of interest with present counsel and allegations of ineffective counsel. Conversation with Sheley may be privileged as it may include theories of defense, so the Supreme Court rules allow an ex parte hearing (out of hearing of the prosecution and the public but still on the record). After that conversation, court will reconvene in a public way and the judge will let us know if it is necessary to hire additional counsel. Everyone but the defendant and defense counsel are asked to leave the courtroom.

While waiting in the hallway for court to reconvene I learned several interesting things. The first has to do with the young girl who was in court in support of Sheley during the fitness hearing. She isn’t here today, word is…it was heard on a police scanner recently
the police are looking for her on theft charges. Perhaps she will get to Sheley again soon. The second thing is…remember the 5th reporter in court today, who sat in my normal seat…I can’t believe I missed this but…I guess he fell asleep and was snoring, the person in front of him turned around and whacked him. LOL, he didn’t come back for the rest of the hearing….maybe he didn’t feel well, or he was afraid. jk

After a half hour or so we were directed back into the courtroom. When I made my way back to my seat, a nice couple had got there ahead of me and offered to get up so I could sit by the pole again, I took the aisle seat (I sit here most often anyway), they said are you sure….about that time the person in the first row turned to look and I said, ”I promise, I won’t snore!” all 4 of us chuckled on that.

Judge Stewart called court back to order and told the court that after a 30 - 40 minute ex parte conference with Sheley and his counsel regarding a wide range of things, including malpractice and honesty he was ready to make some rulings:

Regarding conflict of interest he finds there is no conflict.

Regarding ineffective counsel he rules there has been no ineffectiveness of counsel, all motions made have been appropriate and he feels as well that Mr. Sheley has been well represented. (I agree)
Regarding honesty, the court has been unable to find anytime that counsel has not been honest as far as intentional and knowing misrepresentation although there has been conflict regarding strategy it doesn’t rise to the legal definition.

Therefore the court will not hire an extra attorney.

Stewart then addresses the issue of self-representation, he says that trial strategies differ and the attorneys make the determination of what strategy is used unless Sheley will represent himself or hire a private attorney. If he wishes to represent himself the court will set a hearing to determine his ability to represent himself. The court acknowledges that the state may wish to depose the experts.

Atterberry brings up the recent incidents at the jail involving the defendant and asks that incident reports be submitted to Dr. Killian and Dr. Hanlan before they are deposed. He adds that reports from Harlan and Killian list certain tests that were done and the state would like the raw data from those tests in order to depose them both about the tests. Judge Stewart asks how long? Follow with another deposition in 60 - 90 days?

Karlin jumps in, in regard to the jail incident the defense wants the incident reports before the doctors see the reports. Karlin adds that he has no problem with Dr. Killian seeing Dr. Hanlan’s reports; however, the raw data may be an issue as it may be protected under statute. He adds that the defense can indicate within 10 days as to whether they object or not to the sharing of the raw data.

Atterberry tells the court he can make a formal discovery request for the raw data within a week.

Karlin asks the court for a 10 minute recess. I didn’t hear Sheley talking but Karlin says the defendant would like to speak with defense counsel. Stewart tells Karlin that shouldn’t be necessary because he plans to schedule a hearing for the raw data and won’t make a ruling on the depositions until after the raw data issue is resolved.
Harrell then apologizes to the state and the court, but they really need 10 minutes with the defendant. Judge Stewart says ok and recesses court. Sheley is lead by his entourage of Sheriff’s deputies into the witness room right behind his seat and Harrell and Karlin follow.

Most everyone stays seated except a few who dash out for a ciggy….after about 5 minutes Sheley is back out at the defense table…the judge is still out of the courtroom. Karlin goes over to the 3 people seated on the defense side in the 2nd row and says something to them and then takes his seat.
I forgot to mention one of these gentlemen actually sat at the defense table for a couple minutes before court started for the day and spoke with the attorneys for the state on the prosecution side as well. During the break earlier someone mentioned he may be a lawyer from Springfield that the court was going to appoint to counsel Sheley about the conflict issues. ???I think to myself, those smokers better hurry up with their ciggys, if the judge sees Sheley is back he may go ahead and start. Whew, they made it! LOL!

At 2:52 we are back on the record. Karlin tells the court that his client, Sheley withdraws all motions to remove his attorneys.
Elward asks the court to inquire if Mr. Sheley will try to obtain private counsel. Sheley answers, “No.”
Stewart asks if Sheley will withdraw his motion to represent himself and are these withdrawals made voluntarily? Sheley responds, “Yes Sir”
Stewart asks if he was pressured in any way? Sheley says, ”Not in any way”.
Elward asks if Sheley is taking any medication or is intoxicated by anything that would make him not able to understand his decision? I don’t hear Sheley’s reply but it must have been no because Judge Stewart then said, ”Motion to withdraw is allowed”.

Plazibat addresses the court about a Mr. Hanlon (not Dr. but Mr.) who has made an appearance and says something about rule 416. He continues about clarification needed and that someone is at odds over what the rule means. He inquired with the Chief of the appellate office and they didn’t have clarification either. The state asks the court to hold off on ruling on entry appearance. Stewart says he won’t rule until this is entered as an entry and they can enter their objection. Karlin says Mr. Hanlon has entered his appearance in regards to statutory requirements. If I find out what this is about I will leave a comment on this entry, if anyone knows please do the same…remember anonymous comments are allowed. I only ask that you supply support for any claims and respect others right to their opinion.

Stewart says that since Sheley has announced his intention to keep Harrell and Karlin on his case, the court is ready to move on to discovery and scheduling issues.
Both parties agree to set a hearing to set a schedule in 30 days. Judge Stewart said this will be a scheduling conference, not a hearing, and sets the date for that to be March 3 at 1:30. The court is recessed. I will let you know when I hear of any hearings being scheduled.
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  1. Katfish,

    I would like to thank you for your extremely detailed posts regarding this matter. It's great to get a detailed account of what is going on in this case and I suspect many many others are following your blog as well. It's great not to have to rely on the watered down version that the normal "press" puts out. I hope you or someone like yourself will continue to follow this and blog it when the case moves up to whiteside.


  2. anon 1:11
    Thank you for your nice comment! One great thing about blogging vs. working for the accredited press is there is no limit on space or editor of content. Although I do try to edit myself somewhat...just report it as I see and hear it. LOL!
    Yes, I too hope someone continues to blog this case when it moves to Whiteside. I really want to do it, but I'm not sure I would be able to attend everyday because of distance. We'll see. There is always room for more than one blogger.
    Hopefully this case will get moving now that the representation and fitness issues are decided. Come back soon!

  3. Great detailed post!