Saturday, November 7, 2009

Nicholas Sheley Withdraws Guilty Plea; Change of Venue For Murder Trial Denied, For Now. Part 2

Update at bottom of this entry!

This entry is part 2 of an entry from a Friday, November 6 pretrial hearing at the Knox County courthouse in the murder case of accused spree killer Nicholas Sheley. Click here to read part 1 first.

The purpose of the hearing was for both parties to argue the defense motion for change of venue and the state’s response to the motion. The court also planned to discuss Sheley’s previously stated intention to change his plea to guilty for the murder of Ronald Randall, 65, Galesburg. Part 1 contains the first portion of the hearing where the defense presented their arguments for a change of venue.

Part 2 will contain the arguments from the
States Response To Defendant’s Motion and Supplemental Motion For Change Of Venue , the rebuttal from the defense and finally the ruling made by Ninth Circuit Judge James Stewart on the motion. Sheley will also tell the court whether he still intends to change his plea to guilty for the murder of Ronald Randall, 65, Galesburg.

Stephen Plazibat stands to present the state's response to the court. He starts by saying that in the recent Battery trial for Nicholas Sheley stemming from the April jailhouse incident, a jury from Knox County was able to be selected in one day. The voir dire was performed in five panels of six venires and one of five. Of the 35 potential jurors there was only ten challenges for cause. This just shows how important the voir dire process is versus a telephone polling process. In the voir dire potential jurors are given a road map of the judicial process per Supreme Court rule 431.

Plazibat submits the responses obtained from a phone poll should not be given weight because of the respondents anger at the interruption to their daily life. He says that the DVD submitted by the defense of taped responses reflect indignation for being bothered, yet a large percentage say they could be impartial. Regarding the poll itself....there has been lots of publicity in the last year and a half.....but publicity itself is not...( I'm sorry my notes drop off here, I will complete the thought from memory and a review of the state's response to the motion ) enough to bias a jury. This information will be stale and irrelevant because the passage of time removes the prejudicial effect that publicity may have on a potential juror . Most of the publicity cited will be 2 years old by the time of voir dire under our current trial schedule, the Summer of 2010, at the earliest.

The State's Response to the Defense Supplemental Motion only addresses the first phone poll. The newest poll showed that 74-78% of the respondents had limited knowledge or no knowledge of the case. There is a 4% variance because 49 dropped out of the survey by the time they reached this question.

According to the raw data provided , Exhibit B, A total of 850 respondents were polled. At least 205 know nothing about the case and can be best described as ideal prospective jurors. The pollster eliminated these 205 respondents from further participation in the poll. It is important to consider in an actual voir dire, these 205 would not have been eliminated after the first question.

The second question of the poll asked the remaining respondents to describe their level of knowledge about the case. Of 603 (42 dropped out without explanation), 108 respondents hardly remembered anything, 339 remembered some details, and only 156 respondents were very familiar with the case. If you add the 205 respondents who knew nothing to the 108 who knew hardly anything, to the 339 who knew some details about the case, you come up with over 80% of respondents who knew marginal details of the case.

Plazibat says that the fourth question asked of the respondents in the poll, Exhibit A, was for them to give an opinion of the defendants guilt. Once again the 205 respondents who knew nothing about the case were excluded from answering this question, even though one of the permissible answers was "no opinion". If you assume those 205 who know nothing of the case would have answered "no opinion" then only 64% of respondents would have expressed an opinion of "probably guilty" rather than the 87% reflected in the survey results. (Pages 5 and 6 of the state's response give other examples of ways that statistics can be played.)

Regardless of the statistical games that can be played with surveys, the bottom line is that this is exactly the type of inquiry that the United State's Supreme Court has found to be irrelevant to the voir dire process. Plazibat then also cites Irwin vs. Dowd U.S. 717(1961) as referenced on page 5 of the state's response.

He says that during this poll respondents are not told any of the rights of the defendant as they would be during voir dire.

Additional considerations suggested by Plazibat are:

  • Defendant will soon be moved from Knox County, due to his recent Battery conviction, and will no longer be in the press because of issues related to jail conduct.
  • Evidentiary hearings in the future should be more effective after these.( ??? that's all my notes say)He asks the court to wait and see what issues arise from future evidentiary hearings.

Plazibat summarized that a poll conducted in the Summer of 2009 will have no validity for a voir dire to be conducted in the Summer of 2010, at the earliest.The question asked of poll respondents regarding their ability to be impartial doesn't even remotely resemble the questions that would be asked by the court on that issue. In Illinois jurors must be informed of essential legal principles, such as presumption of innocence and burden of proof, that deal directly with their ability to be fair and impartial.

Plazibat cited cases that he said had more publicity over a longer period of time, such as the Brown Chicken in Cook county and another case in Du Page County(sorry I didn't catch what case), that were able to seat a jury in the jurisdiction the incident occurred.

Plazibat requests the judge wait to make a decision on change of venue until this case is closer to trial. If another jurisdiction is chosen at this stage, it may be flooded with publicity as well.

Judge Stewart asks the defense if they have a rebuttal? Jeremy Karlin stands again for the defense. He begins by saying that cases in Cook and Du Page Counties cannot be compared to this case because the jury is drawn from a much larger pool.

Karlin argues that Dowd shows that once an opinion is formed, it cannot be set aside. He says the publicity in this case is not going to wane in 6 - 10 months.

Karlin then addresses 3 points the state made:

  1. "The Prosecutions best friend"- Change of Venue only available if it proves impossible to find an impartial state would have you believe, it's an impossible standard to establish 12 who know nothing about the case.
  2. Polling is not fair- If polling not fair, why do politicians rely so heavily on it?
  3. Comparing seating a jury in the aggravated battery case to this case- Aggravated battery case cannot be used as evidence in this case, the transcripts are not available. That conviction will be appealed based on issues from voir dire and the courts refusal of a motion for change of venue. I was not at that trial, this is asking us to assume the jury was asked the proper questions. Karlin notes he doesn't intend this to reflect on James Harrell who was counsel in that case, but he doesn't know what questions were asked. How they were asked ? Did the court properly grant challenges for cause? How was voir dire conducted? Were closed questions asked to elicit assertions or were open questions asked to elicit venire's actual opinions? He concludes this point by saying that if the court accepts the Aggravated Battery trial as a model, the court will be assuming or speculating what happened in that trial.

Karlin tells the court this is a murder case seeking state sanctioned murder. What is the state's motivation? Why objecting to this motion? In order for the adversarial process to work, they must do their job. Do they perceive an advantage to the state in having the case tried in Knox County? Fair trials don't start with a 50/50 proposition, they start unbalanced with the accused presumed not guilty. What harm if the court grants the motion? The court would be more assured of less publicity versus the possibility of greater harm.

Judge Stewart says he will reserve ruling. We will take a 5-10 minute recess. Sheley is escorted out of the courtroom to the holding cell. Some people get up and move around, others stay seated. I stay seated and talk with some of the people around me. I find out that the family of Russell Reed is Mr. Reed's son and daughter-in -law. I won't share everything we talked about, I don't want them to think I am speaking to them just to blab on here. I will share that I learned Mr. Reed was not a total stranger to Sheley. I also learned the Reeds are a very nice couple, truly kind hearted and despite what happened to their father they seem optimistic about life. I admire that.

At 11:14 Sheley is brought back in and a minute later we are back on the record. Judge Stewart addresses Nicholas Sheley. He says, " Mr. Sheley, some time ago you expressed a desire to plead guilty in this case." Jeremy Karlin spoke on behalf of Sheley saying that despite a recent court filing that stated Sheley wished to plead guilty, against his counsel's advice, Mr. Sheley has decided he does not want to plead guilty at this time. When Stewart asked Sheley is it correct he had changed his mind and doesn't want to plead guilty ? Sheley responded, "it is."

Bill Elward rises for the state and reminds the court that the defense discovery deadline is set for December 1. He says something about a summary motion to compel and that he will have a motion to file by Monday.

Karlin responds when the defense sees a motion to compel we will look at it. Events of the last month......If I feel I can't comply we will file a motion. Feel as being prejudiced by disclosures not being made. Happy to look at the state's motion and file in an amicable manner.

Elward stands again and says, "We have tendered all the discovery we have."

Stewart says to file the motions and he will rule at that time. Stewart then asks Karlin to please submit the audio he played in court as Exhibit 1 and make a record. In fact, better yet, a disc of the Power Point and the audio for the record.

Stewart then addresses his ruling for the Defense Change of Venue Motion. He says this may not be the only time this is visited, it is woefully early in the case. A motion for a change of venue is at the discretion of the court, must balance the interest of both parties.

  1. He must assure a fair unbiased jury trial.
  2. The preference is for a trial to be held where the crime took place.
  3. Must consider the cost of the trial. A capital case is expensive anyway and this trial may last 5 or 6 weeks. The cost to the state must also be weighed.

Stewart says that Mr. Karlin did an excellent job presenting the motion, particularly interspersing comments not heard before. He does acknowledge he realizes the comments were picked and chosen to uphold the defense position. He adds that the poll is operated in a vacuum which is different from jury selection. Because we realize that potential jurors watch TV, listen to radio and read newspapers and blogs (woohoo) there is an orientation process for jurors. They are informed of a defendants rights and procedures of the court.

Prospective jurors may have impressions and opinions, but when they are questioned individually they are more serious. They are instructed to view evidence in a fresh state of mind and take an oath to follow the law and render fair unbiased opinions. Decisions must be made under the law whether we agree with the law or not.

We cannot assume based on a poll alone that the poll answers would remain the same after the entire voir dire. The best test is the entire venire. Stewart adds he was surprised that a jury was sat in just one day in the battery case. Voir dire is the best test. He adds the capital case will be significantly larger, he expects 500+ venire will be called. He notes the disagreement on the conclusions of bias but it still leaves a significant number of people.

Stewart says in conclusion the motion may be premature. I intend to go through voir dire, it makes sense to select....what is the harm? No harm. Knox County has an interest in this case being tried in the county in which the alleged crime is said to have been committed. He then rules The Motion For Change Of Venue is premature- denied. May be revisited if....

Elward stands and reminds the court with discovery deadline set for December 1 another case management hearing needs to be set. After a little juggling of schedules the next hearing is set for December 4 at 1:30.

Jeremy Karlin double checks with Stewart, " We are not precluded from renewing the motion pretrial?" Stewart says correct and court is recessed.

Update-This comment was left on another Sheley entry last night. I moved it over here so you would know how the rest of the day went for NS yesterday:

Subject was welcomed to DOC today at the Northern Reception Center (NRC), Stateville (separate from Stateville Prison proper) in Crest Hill, just north of Joliet. Rather tight security due to his history of assaulting staff. Guy looks like an everyday moron. Nothing remarkable, just creepy.

Some security staff is slightly miffed about the added security; they handle violent scum like this on a routine basis, and this turd doesn't rate exceptional precautions that might serve to augment his reputation or 'standing' among his new peers here. Not that there will be any opportunity for fraternization here.

I hope he enjoys the ambiance. NRC is very high security, 6x9 cells with solid doors (no bars), at least 23 hours per day lockup with no activity. Some of the worst food in DOC. Loud. Bad ventilation.This is the facility where offenders get their crash course in indifference. They transition from being the defendant, the center of attention, to just another of the 1,800 assholes we house until they've found a new permanent home at one of DOC's satellite shitholes. He is now nobody.

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1 comment:

  1. I noted in this entry that Stephen Plazibat cited two cases, Brown Chicken in Cook County and another in DuPage County. He sighted them because they are examples of cases that received a tremendous amount of publicity over a very long period of time and the court was still able to seat juries in the counties where the offenses occured.
    Here is some up to date information on the outcome of those cases:
    11/05/09 JAMES DEGORSKI received life for Brown's Chicken massacre.
    A Cook County judge formally imposed a life sentence Wednesday on James Degorski for murdering seven workers at the Brown's Chicken restaurant in Palatine in 1993. A jury that convicted Degorski of the murders could not reach a unanimous vote last month to impose the death penalty, so the judge had no choice.
    WHEATON, Ill. — A suburban Chicago jury said Wednesday that a convicted murderer should be executed for the rape and killing of a 10-year-old girl kidnapped from her home 26 years ago –
    BRIAN DUGAN, who admitted yanking 10-year-old Jeanine Nicarico out of her home in 1983 and killing her should die rather than receive another life sentence. The 53-year-old, already serving a life sentence, had been convicted in two other murders, including that of a 7-year-old girl in 1985.
    This is one of the cases that helped lead to landmark death penalty reforms in Illinois, including a moratorium on executions.(2 other men had previously been convicted and spent 10 years on death row for Jeanine Nicarico's murder before being exonerated)

    These 2 are going through RECEPTION at the NRC at Stateville....the same place that Nicholas Sheley is. Those folks earn their pay!!!