Saturday, February 27, 2010

Nicholas Sheley, R. Kelly, Tiger Woods and YoYo Ma ?

Wondering what an accused spree killer, a rapper, a golfing legend/alleged adulterer and a famous cello player have to do with each other? The answer depends on if you are the prosecution or the defense. I’ll explain that more in a bit, I will say these four names came up in court during the same hearing.

There was a pre-trial hearing on Friday, February 19 in the case of IL vs. Nicholas Sheley at the Knox County Courthouse in Galesburg, IL. Nicholas Sheley,30, of Sterling,IL is accused of killing eight people during a week-long two-state killing spree in late June 2008. Katfishponders has been attending the pre-trial hearings and providing "in the courtroom" reports" of the capital murder case against Sheley in Knox County, IL for the bludgeoning death of Ronald Randall, 65 Galesburg,IL.
So here we go…..

I feel really good when I arrive at the courthouse about 9 a.m.. My favorite parking spot was open and I’m early for once. I make my way through security and see a friend, we’ll call “Brownie”, who is a bailiff working the reception desk today. He looks at me kind of funny, he knows I come for Sheley’s hearings, his look tells me something is wrong. He says, ”I thought that was this afternoon.” Ever confident, I say, ”Really? I was hoping it was this afternoon, but when I checked my notes from the last hearing at 2:30 this morning they said this hearing starts at 9:30.” ( I was up late writing a blog entry for the Stacey Barker case out in LA.) Brownie shrugs his shoulders, smiles and points to the stairs for me to head up and see for myself.

I look in the courtroom and there are quite a few people in there, but I don’t see any of the victim’s family in the front row and I know Brownie is right. Shirley Pringle, the Knox County Victim’s Rights Advocate, comes out from the courtroom and says, ”It’s not until 1:30”. That was nice of her. She is an indispensable component of the legal system in Knox County and a very nice lady.

I decide to use this time to see if I can get copies of any motions filed recently in the case from the clerk. There are several motions that will probably be dealt with today, so I pay the clerk and make arrangements to pick them up before the hearing starts.

When I come back at 1 p.m., I stop and pick up the motions from the clerk and head into the courtroom. I’m glad to see Ronald Randall’s family in their normal front row spot with Shirley Pringle. We all visited as people are making their way into the courtroom.

The well is full on the state side today, Knox County States Attorney John Pepmeyer, and three attorneys from the Illinois Attorney General’s Office (IAGO) Bill Elward, Michael Atterberry and Steve Plazibat are seated at the table and another attorney from the IAGO is seated behind them against the wooden railing that separates the well from the gallery.

On the defense side are Public Defender Jim Harrell, Co-counsel Jeremy Karlin and John Hanlon, an attorney from Springfield, who represents Sheley on behalf of the Office of the Appellate Defender. On January 15, Jim Harrell filed a Motion To Withdraw from this case due to a breakdown in communication between him and Sheley. That is one of the issues to be dealt with in today’s hearing.

Nicholas Sheley is brought into the courtroom at 1:35. He is dressed in a tan color prison jumpsuit and is sporting a 2” + goatee. He is escorted, fully shackled, by 2 guards from IL Department of Corrections (IDOC) and 2 transport deputies from the Knox County Sheriff’s office. Sheley takes a seat at the defense table with one guard in a chair closely behind him and the other standing next to him. The Sheriff and the Jail Administrator are here too.

At 1:40 Ninth Circuit Judge James Stewart calls court to order. After acknowledging both parties, Judge Stewart says there are three matters the court will address today. A Motion to Withdraw, Motion to Seal, and Motion to Extend.

After deciding to start with the Motion to Withdraw filed by Public Defender Jim Harrell, lead attorney for the defense, Judge Stewart addresses the courtroom. He tells us this portion of the hearing will be closed. Although most hearings are not closed to the public, the Motion to Withdraw necessitates it, especially as this is a capital case, because there will be discussion that will involve attorney client privilege and possibly defense strategies. With that the Judge tells the state and everyone except the defense counsel and the court reporter to leave the courtroom, he doesn’t really say how long it will take so we all just head out into the hall for what turns out to be a 50 minute wait.

I took a seat next to a reporter from Whiteside County. She attends almost every hearing even though it is an hour and a half drive. Nicholas Sheley is from Whiteside County and 5 of the 8 people killed in his alleged killing spree are from there. She is also covering the Thompson State Prison, a prison that was newly built and never opened because of lack of funds. IL is hoping the federal government will buy Thompson to house the prisoners from Guantanamo Bay when it closes. That’s another story but it was an interesting conversation.

When we went back into the courtroom, Judge Stewart says that after questioning Sheley and Harrell, he finds there is a breakdown in communication, so he will allow Jim Harrell to withdraw from the case. Stewart then addresses Jeremy Karlin, he acknowledges Karlin has already been performing the position of lead counsel de-facto but says because this is a capital case, he is required to qualify him for the position and then did so by asking Karlin a series of questions. After Karlin answered the questions Judge Stewart said he appoints Jeremy Karlin as lead attorney on the case.

Stewart tells Harrell he can leave and tells the court he understands Anthony Vaupel will take Karlin’s position as co-counsel. James Harrell left the courtroom and Anthony Vaupel stepped up to the defense table. Judge Stewart went through a series of questions with Vaupel to qualify him as co-counsel and then admitted him to the case and Vaupel took his seat at the defense table. You can read more about the players on the defense team here.

Judge Stewart says he will address the State’s Motion to Seal next. Michael Atterberry gets to his feet for the state. He says that the state wants make it clear to the court that in filing this motion they are only asking to seal the “State’s 1st Motion Of Limine To Admit Course Of Conduct Evidence“, they are not asking to close hearings.

Karlin responds that paragraph 1 of the “State’s 1st Motion In Limine To Admit Course Of Conduct Evidence” (handed over to the defense in chambers on January 25 but remains sealed to the public until the judge rules on the state’s motion) says the state only wants to seal the motion and any further relief as the court deems fair and equitable. But... they also ask in their motion to seal any response and subsequent pleadings as well because there are a number of allegations in there and we are seeking to avert any pretrial publicity that might effect the defendant’s right to a fair trial.

Karlin says, as we state in paragraph 5 of our Response To The State’s Motion to Seal the state argued at the time of our “Motion To Change Venue” that the effect of media coverage was speculative and unknown. It appears now that State is willing to concede that corrective measures are necessary to protect against the effect of prejudicial pre-trial publicity and safeguard the defendant’s right to a fair trial.

Karlin continues, our “Supplemental Response to State’s Motion To Seal” asks to deny the “State’s Motion To Seal” because the points and authorities cited by the state in People vs. R. Kelly are incorrect to support their motion. (The state cites a 2008 child pornography trial against rapper R. Kelly in which the state successfully closed the public’s access to similar documents due to Kelly’s celebrity status as support to do the same to preserve Sheley’s right to a fair trial. Katfishponders didn‘t get the State's Brief of the points and authorities from the R.Kelly case because it was too large to handle.)

Judge Stewart asks Atterberry what in People vs. Kelly do they apply to their motion the sealing of transcripts and the presumption of public access? (I think I have this right??)

Atterberry says in considering and researching motion to close hearings. (LOL, maybe I should have forked over the $$ for the State’s brief citing Kelly, this might make more sense.)

Jeremy Karlin is back on his feet and tells the court the state has yet to file a response to the defense “Response To State’s Motion To Seal“. He says the “State’s 1st Motion In Limine To Admit Course Of Conduct Evidence” is actually a response to our “Defense Motion In Limine To Exclude” that we filed in March 2009. Their motion seeks to admit any alleged crimes but we’re concerned the intention is to use them to act as a “bootstrap” to later attempt to close the trial to the public altogether.

(Actually the state did file a People’s Response To The Defense Motion Of Limine To Exclude Evidence Of Other Alleged Crimes or Other Alleged Bad Acts At Trial. The state’s response was filed with the clerk on January 22, 2010. I think what he is saying is the motion the state seeks to seal responds more to the merits of the “defense motion to exclude” than the actual “people‘s response to the defense motion to exclude“. Whew...are you still with me?)

Karlin tells the court that the state is making a 180 degree change in their position from what they argued at the time they argued the “Change Of Venue Motion“ when they now argue that pre-trial publicity would adversely effect the defendant‘s right to a fair trial. We concur with the prosecution that there is a substantial probability our client’s right to a fair trial will be prejudiced by access to the State’s pleading and to the public hearings that must follow. The remedy the state seeks, to seal the motion, unfairly creates tension because it requires the defendant to forfeit his right to public proceedings. The alternative remedy is a change of venue.
We were caught off guard when the state filed it’s points and authorities after our response. If the state had filed a response….

Karlin continues there are many reasons the People v. R. Kelly case is inapplicable to this case:

In the Kelly case, the defense and the state agreed in sealing the proceedings, records of transcripts and pleadings. In this case the defendant is not willing to trade off rights.

It is true this case has received unprecedented media coverage in the Knox County area and those other areas the defendant is alleged to have committed murders, but this case is not the same level of publicity as the R. Kelly case. Mr. Sheley is not a celebrity like R. Kelly or Tiger Woods. This case has not received the national and international media attention that the Kelly case did. (Ha, you can say that again! Although Sheley did make Nancy Grace and Greta VanSustern shows, believe it or not that is how I learned of this case, even though one of the alleged crime scenes is just a few miles from my home.)

The timing of the motions in Kelly were just 5 weeks before jury selection. Not so in this case.

Lastly in the Kelly case, the hearing to suppress was comprised mostly of proffers of evidence and arguments of counsel.

The defendants position is this case is more similar to Waller (cited in in defendant’s first responsive pleading) because in this case, for the court to make pre-trial determinations on the admissibility of evidence , it must hear and see the evidence in the form it will be presented at trial. It is anticipated the hearings in this case of whether to admit or exclude evidence of other alleged crimes or other alleged “bad acts” at trial won’t merely be proffer of evidence or argument and statements from counsel, but will involve intense examination and cross-examination of witnesses.

JK adds, if the State cites new cases when it files their response to our response we want the opportunity to respond.

JK-The State is judicially estopped from arguing that pretrial publicity requires a remedy of closure of pleadings and proceedings because the State’s argument is the exact opposite of what it argued in the “Defendant’s Motion To Change Venue”. We ask that the remedy not be to replace publicity but, to change the jury so that all of my client’s rights can be protected.
(The doctrine of judicial estoppel provides that when a party assumes a certain position in a legal proceeding, that party is stopped from assuming a contrary position in a subsequent legal proceeding.)

Judge Stewart says the court will take a brief recess, everyone stands as the judge leaves the courtroom. Sheley is escorted out of the courtroom.

Many of the people in the gallery stay seated for the brief recess and then stand again when the judge returns to the bench. After we all take our seats and court is resumed Jeremy Karlin remains standing. Judge Stewart asks Karlin why are you standing? Karlin replies, “I’m waiting for my client to enter.” With that Anthony Vaupel stands too and Sheley is escorted back into the courtroom. (LOL, I don’t know if I ‘ve ever noticed an attorney do that before.)

While still standing, Karlin asks to be heard a bit more. Judge Stewart says go ahead.
Karlin says in the R. Kelly case, motions to other crimes evidence was made under seal and not on record, so the Kelly case cannot be used in this case. Karlin says he just doesn’t see it, and then adds he presumes he will be corrected. (grins and sits)

Judge Stewart commented, “I thought you were going to break out a cello there for a minute.” then someone said, “Yeah, like YoYo Ma.” ( I’m not sure who said that because I was trying to catch up on my notes and missed part of this exchange ) Everyone laughed. ( I guess it was getting kind of dramatic in here.)

Michael Atterberry stands to respond for the State. He says on page 50 of the R. Kelly case the court did state the constitutional presumption of access does not apply.

MA-On paragraph 22 of the defense “Supplemental Response To State’s Motion To Seal” the defendant concedes that making the “State’s 1st Motion In Limine” public would create pre-trial publicity that might jeopardize his right to a fair trial if evidence is ultimately deemed inappropriate for trial. So why, if the defense concedes with the state’s position, ask to make the motion public? Atterberry adds, a motion for change of venue is not before the court today. My notes then say, “a self- fulfilling proposition”.

Atterberry continues, when [arguing COV] the court ruled that the publicity that had been released thus far didn’t adversely effect the defendant right to a fair and impartial jury. Our position in this motion is not consistent with judicial estoppal. The defendant is taken aback by what is asked to be sealed? We are only asking for the “ State’s 1st Motion In Limine To Admit…” be sealed, nothing else. In light of the Defense’s concession to our position that pre-trial publicity of the allegations in our motion could adversely effect the jury pool and the right to a fair trial. All concerned that the defendant receive effective assistance of counsel should also ask to seal.

Judge Stewart tells the court that there are a number of provisions that sometimes conflict depending on how the decision effects those amendments, he concludes he will take the
“State’s Motion To Seal” under advisement and will notify the parties of his ruling by letter in the coming weeks.

Stewart says the final matter of business to be addressed is the “ Motion To Extend Defense Deadlines “.

Karlin stands again and says the motion to extend speaks for itself but I feel it necessary to speak for my client. This motion brings up the $64,000 question…..the defense is obligated to disclose experts pursuant to Supreme Court Rule 413.

JK- The current disclosure date of February 26, 2010, was set by this court after the defendant argued, without written or timely objection from the State (at Dec.4 hearing), that he was unable to comply with previously set deadlines due to the open question of what other crimes evidence could be admitted at trial. That question is still not answered and the state didn’t file an objection so ask [them?]. We need more time for Mr. Vaupel to consider the legal aspects to assist in our response.

Judge- How much time?
JK- 1 month
John Pepmeyer - The State has no objection, recommend we revisit experts when….precisely what is 30 days? They do have an obligation to disclose experts.
JK- We are just asking for a general extension on experts. We identified an expert today that we can put on record, if court wishes we can disclose some others in 30 days.
Judge- March 22 for response to their motion to strike and 1st Motion In Limine. Court will grant defense extension.
Steve Plazibat- file motion to apply reasoning for permissibility is reasoning of defense. (?? My notes are not specific…this is what they say.)
Judge to Defense- You are under obligation to disclose.
JK- Someone has to step forward first.

(The Judge accused both sides of arguing in circles over this issue at the December 4 hearing….neither side wants to give. I found a letter written by Nicholas Sheley on Christmas day about his concerns from that hearing….I will post that in another entry. The letter doesn’t change anything in the case but does give some insight into Nicholas Sheley.)

Judge Stewart tells both parties they will do a telephonic conference call on April 9 to schedule the next hearing and get an update on Mr. Vaupel’s progress in reviewing the over 12,000 pieces of discovery documents. Stewart asks the defense to coordinate with the IDOC so the defendant can listen to the hearing, but he will not be able to speak on the call, it’s for scheduling purposes only. The defense can confer with client later about thoughts on the call.

Court is recessed! (Whew, I’m out of here…a long day.)
Sphere: Related Content

Friday, February 26, 2010

A Look At The New Make Up Of Nicholas Sheley's Defense Team

On January 15, 2010, the court appointed lead counsel for alleged spree killer Nicholas T. Sheley, Public defender James Harrell, filed a motion with the Circuit Court for the Ninth Judicial District in Knox County, IL to withdraw from Sheley's capital murder case for the death of Ronald Randall,65, of Galesburg,IL.

Nicholas Sheley is a 30 year old man from Sterling, IL who is accused of going on a week-long crime and killing spree in the last week of June 2008. Sheley has been charged in a 17 count indictment that includes 10 counts of first-degree murder as well as 7 other charges for various other offenses related to Ronald Randall's bludgeoning death in Galesburg, IL. Sheley is also accused of of committing 5 murders in Whiteside County, IL and 2 murders in Festus, MO. If convicted in Knox County the state will seek the death penalty.

On February 19, Ninth Circuit Judge James Stewart granted Public Defender James Harrell's motion to withdraw from the case. After a 50 minute closed hearing between Stewart, the defense attorneys and the defendant, Stewart calling the motion unusual, said he does find there is a "breakdown of communication" between Nicholas Sheley and James Harrell.

Judge Stewart approved Jeremy Karlin as lead counsel, adding Karlin has been lead counsel de-facto, now it is official. I agree with the judge's statement because Karlin has been the counsel that has presented motions and argument during all of the hearings I have attended. To replace Karlin as co-counsel, Stewart approved local attorney Anthony Vaupel for that position.

Vaupel is the only other attorney in Knox County who is a member of the Capital Litigation Trial Bar, a necessity in IL to try capital cases. John Hanlon from the Office of the State Appellate Defender is still assisting the defense.

I have found that sometimes when you get someone (or something) because they(or it ) are the only one left you can end up with the bad apple (so to speak), not so in the case of Anthony Vaupel. He has a good reputation in Knox County. Katfishponders has provided information on James Harrell and Knox County State's Attorney John Pepmeyer in an earlier entry so I thought it would be good to give you some background on the current defense lawyers in this case.

Lead Counsel- Jeremy Karlin

Jeremy S. Karlin is a member of the law firm Alcorn Karlin ,LLC and focuses his practice in the areas of criminal and civil trial practice, domestic relations/family law, mediation and worker’s compensation. Mr. Karlin was born in Stamford, Connecticut in 1969, and raised in Fairport, New York. He received his bachelor of arts degree at Syracuse University in 1991 and his jurisdoctorate degree at Loyola University of Chicago in 1994, where he was a member of the Loyola Moot Court Team and a recent cases editor of the Consumer Law Review. Mr. Karlin is admitted to the Illinois and the Wisconsin State Bars and is a member of the Knox County, Illinois State and Wisconsin Bar Associations. He is a member of the Illinois State Bar Association General Assembly. Mr. Karlin served as an Assistant Knox County State’s Attorney from 1995 to 1997 before joining the firm. Mr. Karlin has been certified by the Illinois Supreme Court as Lead Counsel in the Capital Litigation Trial Bar. He has been certified by the Ninth Judicial Circuit to serve as a mediator in child custody and visitation disputes.

Co-Counsel- Anthony Vaupel

Anthony W. ("Tony") Vaupel, originally from Burlington, Iowa, is an associate in the law firm Barash and Everette, LLC in the Galesburg office. Tony earned his bachelor's degree in psychology from Knox College where he focused his studies on body language. He received his law degree from Ohio Northern University. After receiving his license to practice law in the State of Illinois, Tony worked as an assistant state's attorney in Fulton County and then in private practice. Later, he served over two years as a Knox County assistant public defender where he tried a variety of cases. In less than four years of practice he has participated in 17 jury trials and countless bench trials. Tony is an officer of the Knox County Bar Association and serves on the oversight committee for the Knox County Teen Court program.
BORN: Burlington, Iowa, September 17, 1974.
ADMITTED TO BAR: 2001, Illinois; also admitted to practice before the U.S. District Court, Central District of Illinois.
EDUCATION: Carl Sandburg College (A.A., 1996); Knox College (B.A., 1998); Ohio Northern University (J.D., 2001).
MEMBER: Knox County Bar Association (Vice-President); Illinois State Bar Association.
PRACTICE AREAS: Bankruptcy, Criminal, Estate Planning & Administration, Family, Juvenile, Personal Injury.

Assisting Counsel- John Hanlon
I don't have a picture of John Hanlon. He appears to be in his mid to late 50's. Mr. Hanlon is from the Office of the State Appellate Defender (OSAD)in the Capital Trial Assistance Unit(CTAU) in the Springfield office. The Capital Trial Assistance Unit is staffed with attorneys who provide trial assistance in death penalty cases in which the defendant is indigent. The unit also provides assistance by expert witnesses, investigators, and mitigation specialists. The mission of this office is to ensure that indigent defendants facing the death penalty receive the assistance of zealous, dedicated attorneys armed with resources adequate to properly investigate and defend their cases at trial and at sentencing.
Katfishponders thinks John Hanlon has a very impressive resume.....Hanlon began his legal career in 1983 as a staff attorney with the Illinois State Appellate Defender’s Office. Shortly after taking that position, John and co-counsel Tim Gabrielsen landed the assignment of defending Rolando Cruz, following Cruz’s 1985 conviction and death sentence for the murder of Jeanine Nicarico. In 1988, John and his co-counsel persuaded the Illinois Supreme Court to reverse Cruz’s conviction. When Cruz was convicted a second time and sent back to death row in 1990, John recruited a young lawyer by the name of Larry Marshall, a new professor at Northwestern Law School, to work with him on Cruz’s second appeal. That was the beginning of the Innocence Project movement in Illinois. The two succeeded in getting Cruz’s conviction vacated a second time. The third trial resulted in the dramatic acquittal of Rolando Cruz after it was revealed that two detectives had fabricated a "vision" confession. William Kunkel as appointed as special prosecutor, leading to the indictment of police and prosecutors who were known as the DuPage 7. On Jul 28, 2009 Brian Dugan pled guilty to killing Jeanine Nicarico, therefore Cruz had been wrongly convicted 2 times before being aquitted.
John’s work on the case of Joe Burrows and Randy Steidl contributed to their release from death row, and the Burrows case was cited by Gov. Ryan when he announced a moratorium on capital punishment. He currently serves as an adjunct professor at UIS teaching a class called Wrongful Convictions.

There is no doubt in katfishponders mind that Nicholas Sheley will have a very able team of attorneys working his case and will receive a vigorous defense and a fair trial in Knox County. I will do an entry at another time on the attorneys from the IL Attorney General's office who are assisting the State's Attorney in the prosecution of Nicholas Sheley. For now I'm about half way through the entry for the February 19 pretrial hearing mentioned here, I'll post that soon.

Click here to see more information about the relationship between Sheley and Harrell. For complete coverage of this case at katfishponders click here. There are a lot of entries so you will have to go beyond the first page, they are arranged newest to oldest. You can also click on the names under the label section on the right side of the page.
Sphere: Related Content

Sunday, February 21, 2010

Stacey Barker- Change Of Venue Motion Denied

Los Angeles Superior Court in Lancaster CA

Thanks to our friends, Toria, the good twin, and anurse, who took time out to attend another pretrial hearing in the case of California vs. Stacey M. Barker and update us on what happened in court.

February 18, was a busy day at the Antelope Valley (AV) Municipal Courthouse in Lancaster, CA. Three busloads of prisoners were brought over from the Century Regional Detention Facility in Lynwood. (That’s a 90 mile drive.) The head count was short one prisoner, so nothing could begin until all of the prisoners were accounted for.

It was about an hour and a half before Stacey Barker was brought into the courtroom. Barker didn’t look very happy, her hair was down and disheveled and she had a mad face for everyone.

Superior Court Judge Hayden Zackey presided over this hearing. Deputy District Attorney (DDA) S. Kelly Cromer is representing the people and Stacey Barker is being represented by Public Defender (PD) Roberto F. Dager.
The hearing only lasted 20 minutes. Evidently some of the motions that were filed at the hearing on January 14 were dealt with during the in camera hearing held on January 28. There was no mention of the Pitchess Motion so that information must have been turned over in camera.

The Motion for Change of Venue was denied. Judge Zackey said that he will keep the case in his court. Judge Zackey must have issued his order denying the motion earlier because PD Dager already seemed aware of the court’s ruling and added he expects the this case will go to trial soon. (no date set yet that we know of)

There was some discussion about discovery. At the January 14 hearing, the defense filed a motion for some discovery. The defense wanted a video made by the Field Investigation Service Unit (FISU) of the crime scene and also wanted raw notes or a written report from the FISU employees who made the video. It was determined during that hearing there are no raw notes or written report, but the state must have turned the video over.

We didn't hear what (if any) motions were filed by either party today, but wonder if the state filed a Discovery Motion for reports from expert witnesses. PD Dager told the court that Dr. Harry Bonnell, a Forensic Pathologist will testify there are tests that Dr. Ribe failed to perform on Emma that would change the cause and manner of death. DDA S. Kelly Cromer asked Dager what tests weren’t performed? Dager said. “I forget what tests he told me they were.” Cromer continued to press for details about Dr. Bonnell’s testimony until Dager told the Judge, I forget what he said, I didn’t keep notes or write it down. Dager continued, The people can call him just like I did and he will tell her like he told me. I don't want to be like some LE who get up there and lie or make things up ( I think it is safe to say there is NO love loss between the parties here or at the very least they are both passionate about their opposing roles. LOL)

PD Dager informed the court he still doesn’t have the “Ribe Box” that was requested in his Brady Motion filed on January 14. (I don’t have the state’s response to this statement things can move fast in court )PD Dager also told DDA Cromer he wants the raw notes from the coroner’s investigator. Cromer responded that any notes would be included on the Coroner’s report and the defense has that. Dager said no, he wants the raw notes. Cromer said she doesn’t know if there were any.

Mr. Dager asked Judge Zackey for permission to take his laptop into the jail. He said he has the Barker case on his laptop and he has evidence that he wants his client to see. The Judge said he didn’t mind if the defense took the laptop into the jail; however, it really isn’t up to the court ,it’s up to the jail administrator. ( The only new evidence that we know of is the observation report from the jail that Cromer said she would turn over to Dager. Phone calls/ video ???)

Hopefully all of these loose ends will be taken care of by the next scheduled hearing on March 8 so that a trial date can be set. Stay tuned.

March 19 will mark the one year anniversary that Stacey Barker led police to her baby's body, that she admits she dumped on the side of the freeway after Emma died the day before. The question of Emma's death being a murder (as the state contends) or accident (as Barker claims)is for the jury to decide. Barker remains held on a 1 million dollar bond. If convicted on the murder charge, Barker faces a maximum of 25 years to life in prison. Sphere: Related Content

Thursday, February 11, 2010

Mark Jensen Appeal - The State's Response


UPDATE: 2/19/2010
The defense has filed a Reply Brief to the State's Response Brief that was addressed in the entry below. I don't have time to go through it right now but wanted to get it posted.

Mark Jensen 50, is a Kenosha WI man who was convicted on February 21, 2008 for the 1998 poisoning death of his wife Julie Jensen, 40. He was sentenced to life in prison with no chance for parole and now calls the Dodge Correctional Institution in Waupun, WI home.

Of course Jensen is appealling his conviction. The appeal which was opened in April of 2009 is slowly making it's way through the Wisconsin Court of Appeals. Christopher W. Rose is the attorney who has been representing Mark Jensen/ Defendant/Appellant. Marguerite M. Moeller has been taking care of the filings for the State/Plaintiff/Respondent. To see the case history of the appeal click here. As of this writing the case is "In briefing".

Here is a little background on this case and some of the issues from the trial that are being raised on appeal:

A few weeks before her death, Julie Jensen had given a neighbor a letter pointing an accusing finger at her husband should anything happen to her. She also made foreboding comments to police and to her son's teacher, saying she suspected that her husband was trying to kill her. The letter, read aloud in court, said in part: "I pray I'm wrong + nothing happens ... but I am suspicious of Mark's suspicious behaviors + fear for my early demise," the letter says. " Click here to read the letter.

Legal wrangling over the letter and Julie Jensen's statements delayed the trial for years.Using such evidence in court has for years been blocked by strict hearsay rules giving criminal defendants the right to confront their accusers. In March 2004, the U.S. Supreme Court overturned a 1980 case, Crawford vs. Washington, that laid out complex rules for when statements can be used without the opportunity for cross-examination. The court said the case complicated a part of the Constitution (sixth amendment) that guarantees a criminal defendant the right to confront his accusers.

Kenosha County Judge Bruce Schroeder then ruled the letter and voice mails to police were inadmissible, but testimony of the neighbor and teacher could be allowed. Prosecutors appealed and the case went to the state Supreme Court, which said such previously inadmissible testimony could be used if a judge determined the defendants' actions prevented the witnesses from testifying. The Wisconsin Supreme Court based its decision on the "doctrine of forfeiture by wrongdoing." Essentially, it said that Mark Jensen forfeited his Constitutional right to face his accuser, because his alleged actions (murdering his wife) made it impossible for her to appear in court. Judge Schroeder decided it was reasonable to believe that Mark Jensen's actions prevented his wife from testifying.

In June of 2008 there was another Supreme Court ruling, Giles vs. California, that may enable Mark Jensen to have his conviction thrown out.The Supreme Court ruled that defendants must be able to cross-examine the person who is accusing them of a crime even in cases where the defendant killed that person. That means the letter Julie wrote to police, in which she said Mark was trying to kill her, and her statements to friends about the same thing, could not be used as evidence in court.

The Appellants Brief was filed with the Wisconsin State Court Of Appeals on 6/30/09. The Appellants Brief wasn't published, but on 2/01/10 the state filed their 79 page Brief of Respondent with the court and it was . It addresses the issues the Appellants raised and references some of the arguments made by the Appellant in their brief. I recommend that you follow my link to the Respondent's Brief for in depth explanation of the state's responses.

The issues raised by the defendant are presented in black italic.
The state's responses are presented in capital letters and a summary of the arguments to support their responses are in regular script, the page number to the in depth argument is included. In responding, the state addressed more than one issue in some of their responses so I arranged them accordingly here.

1. Were Julie Jensen's letter to the police and her oral statements to Officer Kosman admissible under the doctrine of forfeiture by wrongdoing adopted by the United States Supreme Court in Giles v. California because one of Mark Jensen's reasons for killing Julie was to prevent her from invoking the judicial system by initiating divorce and child custody proceedings against him, thereby satisfying the intent element of Giles? The trial court did not address this question because when it found that Jensen by killing his wife had forfeited
the right to confront her, the court did so under the version of forfeiture by wrongdoing ("FBW") the Wisconsin Supreme Court had adopted in Jensen's pretrial appeal,
and that version lacks an intent element.
2. Alternatively, should this court remand to the trial court to determine this issue? This question was not raised below. (lower court)
A. Post-Giles, proof that one reason Jensen killed Julie was to prevent her from testifying in a family court action is sufficient for forfeiture. .............6
1. Cases applying Fed. R. Evid. 804(b)(6) support this position. .......7
2. Jensen's narrow view of forfeiture conflicts with the view of the entire Giles Court........11
B. The record shows that one reason Jensen killed Julie was to prevent her testimony in a divorce/child custody action......................................................12
C. Alternatively, this court should remand for a determination on the
intent element of forfeiture. ...................16
3. Assuming this court answers the first two questions "no," was the admission of Julie Jensen's letter to police and her testimonial statements to Officer Kosman harmless error? This question was not raised below.
HARMLESS BEYOND A REASONABLE DOUBT. .............................17
A. The test for harmless error. ....................17
B. Most of the information in the letter and in Julie's statements to Kosman was duplicated by other admissible evidence. ................................................18
C. Even if the letter had not been admitted in the State's case-in-chief, the jury still would have learned of its existence and some of its content. .........22
D. The case against Jensen was strong even without Julie's testimonial statements...............................................24
4. By failing to raise it below, has Jensen waived the argument that his right to a fair trial was violated when the judge who found Jensen had forfeited his right to confront the victim presided at his murder trial? Alternatively, did Judge Schroeder's pretrial finding that the State had proved by a preponderance of the evidence that Jensen killed Julie render the judge biased against Jensen? These questions were not raised below.

JUDICIAL BIAS............................................32
A. Jensen has waived the claim that the trial judge was biased.............................32
B. Judge Schroeder's pretrial forfeiture ruling is not tantamount to a pretrial
finding of guilt and does not constitute judicial bias............................33
5. Did the trial court erroneously exercise its discretion when it allowed the State to present evidence that Jensen, during the years preceding his wife's death, had repeatedly and surreptitiously placed pornographic photos on and around their property to punish Julie Jensen for a brief extramarital affair? The trial court ruled that this evidence was admissible to prove one of Jensen's motives for killing his wife, i.e., his bitterness toward her and his need to punish her for the affair.
6. Relatedly, did the trial court erroneously exercise its discretion in admitting evidence of Jensen's sex talk with Kelly Jensen, including a discussion of the size of her former lovers' penises, to show that Jensen searched the home computer for "John Jock Joseph" in October 1998 and that he was the source of the photos left around the Jensen home? The trial court admitted the evidence.

7. Did the trial court erroneously exercise its discretion in admitting testimony that penis photos were found on Jensen's home computer in 1998 and his work computer in 2002, to establish that Jensen was the person who had left pornographic photos around the family home for years? The trial court admitted the evidence.

PURPOSES. ...................................................37
A. Only Jensen's conduct in leaving the pornographic photos should be analyzed as "other-acts" evidence..........37
B. Evidence that Jensen had for years left pornographic photos around the house to punish Julie for her brief affair was relevant to prove motive and to explain the dynamics of their
marriage. ................................................42
C. Storing penis photos on his work computer in 2002 made it more likely Jensen had accessed similar pornography on the home computer in 1998, which in turn helped prove he was the one who left pornographic photos around the home and accessed poisoning sites before Julie's death........45
D. Sex talk between Kelly and Jensen helped prove he searched for John Jock Joseph in October 1998 and also helped identify Jensen as the source of the pornographic photos....................48
E. Jensen failed to prove that the probative value of any of the challenged evidence was
substantially outweighed by the danger of unfair prejudice. .....................50
10. Was the seizure and search of Jensen's home computer a valid consent search? The trial court said yes.
V. THE SEIZURE AND SEARCH OF JENSEN'S COMPUTER DID NOT EXCEED THE SCOPE OF HIS CONSENT. ....................................................53
8. Assuming Jensen killed his wife in part to prevent her from initiating family court proceedings, did he thereby forfeit any hearsay objections to the admission of her testimonial statements?This question was not raised below.
9. By killing his wife, did Jensen forfeit any hearsay objections to the admission of her nontestimonial statements to other witnesses, regardless of his motivation in killing her? The trial court said yes.

EXCEPTION. ................................................57
A. A defendant who forfeits the right to object to a witness's testimony on Sixth Amendment grounds also forfeits the right to object on hearsay grounds...................................................58
B. This court is bound by the supreme court's determination that, by killing Julie, Jensen forfeited any confrontation objection to her nontestimonial statements under the Wisconsin Constitution, and that forfeiture ruling should extend to any hearsay objection..........................61
C. Most of Julie's nontestimonial statements were admissible for nonhearsay purposes, i.e., as
circumstantial evidence that she was not suicidal.............................................64
11. Should this court grant Jensen a new trial in the interest of justice? 
VII. JENSEN SHOULD NOT RECEIVE A NEW TRIAL IN THE INTEREST OF JUSTICE........................................................65
CONCLUSIONThis court should affirm the circuit court's judgment.
STATEMENT ON ORAL ARGUMENT AND PUBLICATIONAlthough Jensen provides no reason for requesting oral argument, the State joins in his request because argument would allow the parties to focus their attention on issues the court may find troubling or in need of additional development, a situation likely to arise given the sheer volume of the record and the number of issues raised on appeal. The State also requests oral argument
because due to the word-count limitation established in this court's order of December 14, 2009, the State's brief is not as comprehensive as it could be in addressing each of the issues Jensen has raised on appeal. Oral argument would allow the State to articulate its position in more detail.
If this court orders oral argument, the State respectfully requests that the court specify the issues it would like the parties to address. The State also suggests that the court consider enlarging the time allotted for oral argument from the typical thirty minutes per side to a
longer period, the precise time dependent on the number of issues targeted.
The State requests publication of the court's decision if it addresses the contours of forfeiture by wrongdoing under Giles v. California, 128 S. Ct. 2678 (2008), or if the court determines whether the version of forfeiture by wrongdoing adopted in State v. Jensen, 2007 WI 26, 299
Wis. 2d 267, 727 N.W.2d 518, still applies to nontestimonial statements.
Anticipated Due Date for the Appellant's Reply Brief is 2/16/2010.
This case will be heard by a panel of 3 judges.
Katfishponders will continue to follow the appeal and update what is found.
To see the details of the trial and coverage of this case on Katfishponders click
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Wednesday, February 3, 2010

Harrell Wants Off Of Sheley’s Defense Team

Public defender Jim Harrell filed a motion on January 15 in Knox Count Circuit Court to withdraw as one of the attorneys in the capital case against Nicholas Sheley. In the motion, Harrell claims there has been a “total breakdown in the attorney-client relationship” that would prevent him from effectively representing the defendant.

Sheley has been at odds with his attorneys throughout this case. In 2008 Sheley wanted to fire his attorneys and represent himself. After numerous hearings and several psychiatric evaluations he withdrew the request.

In addition to the murder case, Harrell represented Sheley in a 2009 aggravated battery trial. Sheley was charged last spring, after an incident at the Knox County jail in which three officers were injured. Sheley was found guilty and sentenced to seven years in prison. He is serving time in Pontiac Correctional Center. Sheley tried unsuccessfully to fire Harrell and represent himself in the battery case as well.

Harrell’s motion requests that attorney Jeremy Karlin be appointed lead counsel and another attorney be appointed co-counsel. Because Sheley faces the death penalty if convicted of killing Ronald Randall of Galesburg, any attorney representing him in this case must belong to the Capital Litigation Trial Bar. There is only one other lawyer in Knox County besides Harrell and Karlin who is a member of the Capital litigation Trial bar, his name is Anthony Vaupel. Vaupel has a private practice in Galesburg. There has been no word as to whether Vaupel will join the case. John Hanlon of Springfield who is already a part of the defense team is also qualified to be appointed as co-counsel according to the Capital Litigation Trial Bar Roster. He practices out of the Office of the State Appellate Defender.

There will be a hearing February 9 at 3 p.m. on Harrell’s Motion to Withdraw. Sphere: Related Content

Judge Concerned Sheley Murder Trial Could Be Delayed

Katfishponders attended a case management hearing at the Knox County Courthouse on December 4, 2009 in Galesburg, IL . During the hearing, Ninth Circuit Judge James Stewart expressed concern about a possible delay in the start of the murder trial for accused spree killer Nicholas Sheley ; however, he did so at the same time as granting a defense motion to extend a deadline for providing the state a list of defense experts by 60 days.

For some reason I had some trouble taking notes during this half hour hearing. It seems each side wants the other to provide information before they can provide the information the other requests. On several occasions Judge Stewart told both parties they were arguing in circles and at one point he said he doesn’t want to hear it anymore. I’ll do my best to describe the hearing, but because my notes are so “all over the place” in some areas this may be more of a summary than my normal “in the courtroom report”.

Because Nicholas Sheley was moved to the Statesville Correctional Center in Joliet, IL to begin serving his 7 year sentence for a conviction of assaulting correctional officers in the Knox County Jail, he was escorted into the courtroom by three officers from the IL Department of Corrections. His housing and transportation are no longer the responsibility of Knox County. The only change I noted in his appearance was a bright yellow, jail issued, shirt and pants vs. the orange that inmates in Knox County wear. One officer kept his hands on Sheley’s waist chains until he sat down and then stood directly behind him.

Jeremy Karlin and John Hanlon were the attorneys in court today for the defense, Public Defender Jim Harrell was absent today. At the table for the state was Knox County State’s Attorney John Pepmeyer and Illinois Assistant Attorney General Bill Elward, there may have been someone else from the AG office (not in my notes) but today Elward was the only attorney for the state who addressed the court.

Judge Stewart says there are 2 Motions filed by the defense. I know one is the Motion to extend, I believe the other is a Motion in limine to exclude Sheley’s prior bad acts. Unfortunately, I haven’t been able to afford getting copies of the motions that were filed. Based on the discussion in the hearing that assumption seems reasonable. (I will not be offended if anyone corrects me on anything I have reported here.)

Jeremy Karlin began by telling the court the defense filed the motion to extend discovery because they need more time to line up defense experts.

Bill Elward told the court the state doesn’t object to the extension the defense requests. He also tells the court the state intends to introduce at trial, every prior bad act committed by Sheley, including the “events” he is accused of in Whiteside County on June 23, 2008 until his arrest in Granite City, IL on July 1, 2008. Elward then says our response will depend in part on any defense theory they plan to use such as alibi, insanity.

Karlin replies,” to the extent they don’t object, we ask for extra time. In regards to the other issue, we don’t wish to reply on the fly.” ( intended defense)

My notes then say Judge Stewart replies you need to brief and we can schedule a hearing.
(I think this is where the arguing in circles starts?)

Elward is on his feet saying something about the motion on the other acts. He continues with respect to mental health, what date for defense equitable witnesses? To try this case in 2010 we need to be clear ….if want to set a briefing schedule absent some new affirmation of a reasonable defense. We need a date to file 413 (Rule 413. Disclosure to Prosecution). After the state has a list of defense equitable witnesses the state may need additional witnesses. He continues we are 1 and a ½ years into the case and they tell us they need 45-60 days for briefing.

Karlin replies the $64,000 question is, if the prior bad acts are allowed, will the state seek to use them in the guilt/innocence phase, how much relates to this case? If used in the state’s rebuttal case, we need more information. We need to know what the court will allow in at trial so we know what defense to raise. The state needs to brief the issue on the merits of the motion, not defense disclosures. The motion has been on the docket for a while.
Stewart says he doesn’t understand why the defense can’t disclose what they do know. (defense experts?)

Karlin disagrees with the Judge’s premise, per Supreme Court rule 413 we have complied. We need to know the timing of this evidence coming in, whether during the guilt/innocence phase or in the mitigation case (if needed) in order to decide what type of defense we will mount. You have me arguing the merits of response without a written response.

Elward is already on his feet when Judge Stewart says,” I don’t want to argue, you are arguing in circles.” (I think he is addressing both parties) Stewart says he will extend by 60 days.

Elward says the state will have a written response to the defense motion to exclude evidence in a reasonable time.

There was an exchange between Stewart and Elward that I didn’t get, the next thing I have down is Judge Stewart, “if you object to his motion you have until Jan 1“. (I think Elward said the state will file a Motion in Limine to include Sheley’s prior bad acts.)
Karlin says he can have a memorandum and reply 3 weeks after.

Stewart asks the clerk to give him a date on or before January 27. He says there have been no responses filed to set a briefing schedule and he will not argue in circles anymore. The next hearing will be February 19, 2010 at 9:30 a.m. he says the other matters can dealt with at the next case management hearing. Stewart asks if the defense has had the opportunity to go over all the material provided to them.

Karlin replies,” speaking for myself I have once,” Stewart asks Hanlon if he has reviewed the material. Hanlon replies, ”all but the last box.” Stewart then asks what about Harrell? Karlin says he can’t speak for Harrell.

Elward tells the court again, we intend to introduce every offense the defendant has ever committed.

Karlin says our motion doesn’t go to….Elward says, they can’t respond to that until this issue is addressed. Disclosure of experts? Then says defense response by February 26?

Judge Stewart ends the hearing by saying we have had May - October 2010 reserved for the trial….September - October is looking better.

Note: When I got home from this hearing I had a notification from the IDOC that Sheley was moved to his new home at the Pontiac Correctional after court today. For more info on that click here. Sphere: Related Content

A Memorial For The Victims Of Nicholas Sheley's Alleged Killing Spree

As most readers of katfishponders know, Nicholas Sheley has been charged with 8 murders in connection with the week-long, June 2008, killing spree. Of the 8 that were killed 5 people were in Whiteside County, IL, those are Russell Reed 93, of rural Sterling; and Kilynna L. Blake, 20, Dayan K. Blake, 2, Brock A. Branson, 29, and Kenneth R. Ulve, 25 in a Rock Falls, IL apartment that they shared. In Knox County, IL, Ronald Randall 65, of Galesburg was killed. In Festus MO, a couple visiting from Arkansas, Tom and Jill Estes, both 54, were the last to be killed before Sheley was captured in Granite City, IL.

I was recently sent some pictures of Kilynna (Kye) Blake and her son Dayan Blake. The pictures were sent by a friend who said I could share them with the readers of katfishponders, his wish is for them to be remembered how they lived.

I would like to do a memorial with pictures of all of the victims in June at the 2 year anniversary of their deaths. All too often the victims are lost or seemingly forgotten as the accused moves through the criminal justice system. This is about them....not him! There are thousands of readers who have been following this case on katfishponders who, I’m confident, would like to pay their respects. I have hesitated to publish pictures of the victims because I didn’t want to invade the privacy of, nor cause more pain for their loved ones.

I would be interested in hearing from family how they would feel about my publishing this memorial and I will respect your wishes. There is a link to my e-mail on my blog profile where you can send your thoughts and/or pictures of your loved ones. Just put your loved ones name in the subject line. I have pictures of all of the victims except Kenneth Ulve that were released in the media at the time of their deaths. I would ask the family and friends of all 8 to send me pictures of their loved ones they would want to share with the readers of katfishponders.
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