Nicholas Sheley Case, It's A Long And Winding Road to Justice

Updated at bottom- June 18

One thing I have learned from the many murder trials that I have observed is that even though there are rules of procedure set down by (both U.S. and State) Constitutions (such as the due process clause that ensures legal fairness)  and  legislators (statutory laws) there often are issues that arise that are unexpected.

In our system of justice when lawyers make their argument before a court or a situation arises that is not directly addressed in a law or the interpretation of the law is in question, the court depends on legal precedent or case law  (decisions of appeals courts and other courts which make new interpretations of the law that are derived from the application of particular areas of law to the facts of individual cases, and, therefore, can be cited as precedents) to support their argument or resolve the issue.

When the death penalty is on the table there are even more rules and exceptions to rules, but issues still arise that are unique. The capital murder case of Nicholas Sheley has had several unique issues come up in the preparation for trial. Recently there has been an issue come up that's been brought about by some action taken by the IL Department of Corrections (DOC).

Nicholas Sheley at Pontiac Correctional

Nicholas Sheley is a 30 year old Sterling, IL man, who has been charged with capital murder for the 6/28/08 bludgeoning death of Ronald Randall, 65, of Galesburg, IL. The trial is expected to start sometime between January to March 2011 . Sheley is also charged for five deaths in Whiteside County, IL and two deaths in Festus, MO. related to an alleged killing spree during the last week of June, 2008. Sheley is awaiting trial at the Pontiac Correctional Center, in Pontiac, IL after being sentenced to seven years in prison for a conviction on charges that alleged he attacked 3 correctional officers causing them injury during an incident at the Knox County Jail in April 2009. Prior to that conviction, Sheley had been held in the Knox County jail since July 2008 on a $10 million bond.

There has been two hearings related to this issue with the DOC. The first hearing was so vague that I didn't even write about it at the time. The second hearing shed a little light on the issue and I was able to find some information online, so I'll give it a try. This entry will include both hearings.

The first hearing, on May 14, about the issue raised by the DOC was short. There wasn't anyone from the prosecution for the murder case at this hearing. The IL DOC was represented by Chris Higgerson and Lea Bendik of the IL Attorney General's office. Lead attorney Jeremy Karlin, Co-counsel Anthony Vaupel ( both court appointed because Sheley is indigent ) and Nicholas Sheley were at the defense table.(escorted by 4 "big" guys from DOC)

At the beginning of the hearing, Jeremy Karlin moved to have the hearing closed. Ninth Circuit Judge James Stewart didn't feel there was authority to close the hearing and told the parties he wanted the issue briefed before he would consider closing the hearing.  Stewart said that in a criminal case there are mixed rights, the defendant has a right to a fair and public trial, but the press and public also have a  right to attend criminal trials.

Karlin told the court if the hearing isn't closed he would be forced to disclose defense theories to the public when discussing the objections the DOC has, adding that he also respectfully disagrees with expenditures previously authorized. Karlin acknowledged to the court this is a novel area due to the DOC position and reminded the judge that they were under deadlines. Judge Stewart responded any deadlines the defense is under are from this court and we are not discussing expenditure of funds. Bendik told the court the AGO agrees with the defense, but the judge reiterated he wants to be briefed.

Karlin requested that the record reflect the imposition on the defense of the DOC motions that are interfering with our attempt to__________. Oops I missed that in my notes but I think he was talking about preparing their defense and meeting deadlines. This is an area where the conversation seemed cryptic to this novice.... Stewart said something about April 1 and the Supreme Court also directs the conduct of_______(this court?) He continued that on May 11 there was a return of mandate. This is no case of controversy- will address when the matter becomes ripe. Bendik started to say something and Stewart said he rules this is not a case of controversy so the motion to unseal transcripts is moot. The case is continued to June 18.

I have been trying to find out what the issue is with the DOC, I didn't find this until after the 2nd hearing but I'll stick it in here so you will have a better idea what I'm talking about when reporting on that hearing. This is what I 've been able to find....On April 1, 2010, Judge James Stewart issued an order directing the Illinois Department of Corrections to transport defendant Nicholas T. Sheley for certain testing. The DOC filed an emergency motion  for leave to file a petition for an original writ of mandamus. (A writ of mandamus is a writ issued by a superior court ordering a public official or body or a lower court to perform a specified duty.) The motion was denied and the order was entered by the court.
(This is speculation but because of the discussion at the end of the May 14 hearing, I think what the DOC wanted was the transcripts to be unsealed from an earlier ex parte hearing to authorize expenses for the defense.)

The DOC then filed an emergency motion with the IL Supreme Court for a supervisory order. The motion was allowed. The Supreme Court wrote in it's order, " In the exercise of this Court's supervisory authority, the Circuit Court of Knox County is directed to vacate its order of April 1, 2010, directing the Illinois Department of Corrections to transport defendant Nicholas T. Sheley for certain testing. The circuit court is directed to conduct a hearing at which the Illinois Department of Corrections may be heard on the subjects of safety and expense, and may suggest alternative orders."

A week or two after the first hearing, once again, a little birdy notified me there was a hearing scheduled for June 11 at 10 am. {{Hugs}} The birdy also told me this was to hear arguments about who would pay for transporting Sheley for tests, so I'm surprised when  Assistant Attorney General Bill Elward and Knox County State's Attorney John Pepmeyer come in and take a seat at the state table. (I expected to see the 2 who had represented IL DOC at the last hearing.) At the defense table is  Lead Attorney Jeremy Karlin and Co-counsel Anthony Vaupel. John Hanlon is also here for the defense. Hanlon is from the Office of the State Appellate Defender (OSAD) in the Capital Trial Assistance Unit in the Springfield office.

We still have a little time before court so Karlin and Elward are talking a little sports across the aisle...I didn't hear who, but someone is the worst sports franchise ever. LOL ( These guys may be friendly with each other when court is out of session, but once the hearing starts they are very professional and definitely serious about their adversarial roles.)


There are 3 people sitting in the reserved seats for the press, directly behind the defense. I recognize the reporter from Whiteside County, we both motion hello. I sure miss Susan Kaufman from the Register-Mail. ~ I'm  waving if your reading this Susan ~  The other 2 are new faces (after court I introduce myself and one of the new faces is from the Galesburg Register-Mail and the other is a new reporter from WGIL a local radio station.)

A little after 10, Nicholas Sheley is brought in by 2 DOC officers, he is fully shackled and wearing his tan DOC uniform, I couldn't help but notice he's sporting brand new Nike shoes.(In the county jail he had to wear plastic sandals year round).

Judge Stewart enters and court is in session.(Again, my notes today are sort of cryptic because they seemed to talk that way.....and they weren't saying exactly what the issues were. I will do my best to "fill " them out a bit given the information I gathered after this hearing)

Judge Stewart says that there are several issues for today:
          There are issues for both parties to brief.
          The defense has also filed a motion to extend discovery.

Jeremy Karlin rises to address the court.
He mentions the interpretation of section 10c of the Capital Litigation Act :
     1. Addresses certification of expense and the question whether the court has power to do so ex parte.
      2. Whether at a future date or whether should be done in camera.
Karlin says the state agrees the court has authority to enter orders if the date, time and place are known. Karlin gives Judge Stewart the agreed proposed order.

Bill Elward addresses the court for the state and says they agree to the order with an amendment to the second line, first sentence.(This will make more sense once I see a copy of the order)

 Judge Stewart says he wanted both sides to offer briefs and make a record. Stewart acknowledges even though he agrees with the language in the order and signing it,  this is unusual because the IL DOC is a part of another branch (executive branch)of the government . The separate branches of government do not  have authority over each other.
(The way I understand the situation is the DOC is objecting to transporting Sheley for these defense requested tests because of financial and security reasons. The defense wants this undisclosed testing done in order to effectively prepare their defense.)

Judge Stewart tells the court the legislature has recognized the need for the defense in a capital case to prepare a defense for the guilt phase and for mitigation in the penalty phase if there is a conviction.Stewart adds there is provision in the Capital Litigation act for ex parte hearings (for the benefit of one side or party, in this instance the defense, in the absence of the other) for expenditures on expert witnesses. He says this boils down to an equal protection argument. If the defendant could afford to hire his own expert witnesses the defense wouldn't have to disclose to the prosecution who they have consulted and would not want to do so.

Judge Stewart even offered an example, for instance if the defense consulted with an expert who determined they could not support the defense's position, the defense wouldn't use them; however, if the state was privy to the identity of this expert just because the defendant was indigent, they could seek the expert out for their own case, which would give the state an unfair advantage. If the defendant was then found guilty, the conviction could be overturned because this unfair advantage could result in the denial of due process.

Stewart said therefore he will side with the defense, but if the Supreme Court overrules there would be no harm to the state because they would then be privy, adding if this court is wrong a bright line test can be done. The court orders the DOC to transport the defendant for the required testing. Stewart told the defense whenever they need an ex parte hearing they should notify the prosecution of the hearing so they are aware, but the order allows Sheley to be tested and transported without the knowledge of the prosecution.Judge Stewart said the court is trying to preserve the rights of everyone.

Karlin in referring to the defense motion to extend discovery deadline, told the court because of the nature of what we just did (order for testing), we don't want to mislead the court or the state when we are still investigating.

Bill Elward rose and told the court the state feels a little handicapped. The state has an offer of proof for their motion in limine due by 6/30. Can't the defense make some response? They can amend if needed adding at some point the state will file a motion to compel.

Stewart said the matter will be set for the next hearing, June 18 (tomorrow) acknowledging unusual circumstances have been involved in the issues brought by the DOC.

There are two more hearings tomorrow, Friday, June 18. The first hearing will be at 10 am. It will be a closed hearing and I'm pretty sure it will be exparte. The second hearing will be "open" and is scheduled for 11 am at the Knox County Courthouse in Galesburg, IL.

Yes, it's a long and winding road but we will get there.....

Update- June 18

I went to the hearing today at 11 am,  but everything that needed to be done was accomplished in the closed hearing. The closed hearing was in camera (versus exparte) and attended by the defense and the attorney(s) from the IL AGO representing the IL DOC. I recognized Lea Bendik from the May 14 hearing. I'm not sure who else from the IL AGO attended as the closed hearing was done by the time I got there. Of course, we aren't privy to the results of that hearing....we'll just have to wait and see if the DOC goes back to the Supreme Court or if Judge Stewart's order to transport Sheley for testing stands.

I stayed around the courthouse a bit and was able to find out that the defense motion to extend deadlines resulted in an agreement between the parties to extend deadlines as follows:

The previous state deadline to enter their offer of proof for the defendant's prior bad acts was extended  2 weeks to July 15.

The defense response to the state's offer of proof is due August 15.

The defense deadline to enter any known Affirmative defenses per Supreme Court Rule 413 is moved to September 15.  
(Affirmative defenses operate to limit, excuse or avoid a defendant's criminal culpability, even if the charges are admitted or proven. Whereas a defendant normally has no burden of proof, when offering an affirmative defense, the defendant usually must affirmatively come forward with some evidence that the defense exists; hence, "affirmative" defenses. A few examples of affirmative defenses are an alibi, self-defense or an insanity-defense.)

I may do an entry on the not-guilty by reason of insanity defense sometime. Not because it applies to this or any other case I'm following, but because the concept interests me. Did you know Illinois doesn't recognize a not-guilty by reason of insanity defense? Each state has a different standard for this defense....like I said...I'll get into that some other time.Stay tuned. ;)

Oh and one more thing.....I was told that the worst sports franchise ever, that I referenced from the June 11 hearing is the Blackhawks, but that was then, I'm told that now the Blackhawks are now the best franchise. LOL! Sphere: Related Content