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.)
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