Nicholas Sheley Defense Asks For Special Prosecutor

WGIL Radio in Galesburg, IL reports that the defense for Nicholas Sheley filed a motion on Monday, July 12 to have a special prosecutor appointed in his capital murder trial. I haven't seen the motion yet, so I'll supply the article from WGIL.com Their article will appear in black italics in this post and my analysis and opinions of the case will appear in regular type.

The local attorneys for accused spree killer Nicholas Sheley say a recent order in their favor makes it necessary for a special prosecutor to be appointed in the case.

Documents were filed Monday in Knox County Circuit Court by defense attorney Jeremy Karlin asking for the special prosecutor.

Karlin cites an order signed last month by Judge James Stewart that allows the defense to seek certain testing or services on an "ex parte" basis -- meaning, without prosecutors being present -- and also allows the Department of Corrections to transport Sheley for that testing without telling prosecutors.

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.The motion was denied and the order was entered by the court.

The IL Department of Corrections (IL 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."

That hearing was held on June 18 and the court, again, ordered 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.

I wrote an entry on the June 18 hearing when
Judge James Stewart upheld this order titled 
"The Nicholas Sheley Case, 
It's A Long And Winding Road To Justice".

But Karlin claims while the order means his side doesn't have to disclose parts of their case prematurely, the filing says "A party to these orders has failed to comply with the terms of these orders."

Karlin doesn't specify in the filing who's at fault -- just that a special prosecutor is needed to help enforce ex parte matters in the future.

Because of the position the IL DOC has taken regarding this transport, Katfish...ponders feels comfortable speculating that the DOC in some way notified the state of a transport. They may have notified another agency within the executive branch of a transport feeling they would still be in compliance but the state was notified ??? I just don't see the State's Attorney or Illinois Attorney General's office failing to comply with the judge's order, besides, how would they know unless it came from the DOC?

But he's now also asking the judge to dismiss the entire 17 count indictment against Sheley, accusing him of bludgeoning to death 65-year old Ronald Randall among other things over two-years ago now -- part of a suspected two-state killing spree, and to strike a notice of intent to seek the death penalty.

We can consider these latest motions as 
just another curve in that road to justice.

This isn't the first time Sheley's defense has made a motion to dismiss the 17 count indictment or to have the option to seek the death penalty removed. Those motions were previously denied in 2009. It's not clear without having seen this latest motion to dismiss and strike if they are being presented as sanctions for failure to comply with the court's order or just a continuing attempt to provide Nicholas Sheley with a vigorous defense. I tend to think it's the latter.

The Illinois Attorney General's office has aided the Knox County State's Attorney in trying the case, but Karlin says appointing a special prosecutor means Sheley's right to a fair trial will be maintained.
 

Again, this is just my opinion based on what little I know and have speculated about these recent developments.....If the DOC feels they must notify someone about these transports for safety reasons, maybe it is appropriate to appoint a special prosecutor or special master to oversee these exparte matters.

Sheley is currently serving a prison sentence for starting a fight with employees of the Knox County Jail last year. It's not known when this new motion will be heard. 

Katfish...ponders has learned there are hearings scheduled for July 29 and July 30, both at 1:45 p.m. to hear these motions.

In the meantime, several media outlets including WGIL have until Monday to respond to yet another subpoena in the case asking for documentation of their coverage of the case.

The defense filed a motion for a change of venue earlier in the case and have conducted phone polls in Knox County to support their motion. That motion was argued by both sides in November 2009 and Judge Stewart denied the motion calling it premature; however, he did not preclude the defense from renewing the motion pre-trial. The defense must be keeping up-to-date on the coverage in preparation to renew the motion. 

When denying the defense motion for change of venue in November 2009, Judge Stewart said, "Knox County has an interest in this case being tried in the county in which the alleged crime is said to have been committed." 

Any readers who are fellow trial watchers know that in some states the remedy the courts have used to avoid the expense and inconvenience of moving an entire trial, yet protect  right to a fair trial of the accused, is to bring a jury in from another county within the district. Perhaps in this day and age of 24/7 media coverage more states should consider this option. Off the top of my head I know of recent cases in Tennessee and Florida that have successfully done this......I haven't researched it but I know there are other states that do the same.

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Waiting, Waiting, And Waiting Some More....Judge Rules Nicholas Sheley Trial Won't Begin Until 2011

Nicholas Sheley mugshot

The hearing I attended at the Knox County Courthouse on April 29, was originally intended to be a telephonic scheduling conference between Ninth Circuit Judge James Stewart, the Prosecution, the Defense and defendant Nicholas Sheley who is housed in the Pontiac Correctional facility. Judge Stewart had scheduled the teleconference earlier this year in an effort to save Illinois some travel expense. Some of the attorneys for the state, one of the defense attorneys and Nicholas Sheley are located through out the state between Chicago and Springfield.

 Unfortunately,  the prison phone system couldn't forward the call into the area of the facility where Sheley is held, so Sheley was transported two hours each way for this half hour hearing.Why Sheley couldn't be brought to an area of the prison where the call could reach ?? I don't know. Kudos anyway to Judge Strickland for trying to keep an eye on the expense. The purpose of the teleconference  was to schedule some hearing dates and deadlines in preparation for the upcoming capital murder trial of Nicholas Sheley, 30, for the murder of Ronald Randall, 65, of Galesburg, IL . 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.

 I made my way up the stairs to the second floor courtroom about 1:15 pm. The hearing was scheduled to start at 1:30 pm so I had a few minutes to spare. I stopped for a minute to talk to a reporter from Whiteside County, Tara Becker, before taking my usual seat behind the family of Ronald Randall. They always sit in the front row behind the prosecution. This spot gives me a good view of the entire courtroom and a pole to lean on.

 A side note that may be of interest: At the last hearing Tara Becker told me she was reporting on the sale of  the Thompson State Prison to the federal government. I asked how that was going and she said the prison is officially closing as a state owned facility and the few prisoners who were housed there have been moved. In December 2009 President Obama directed the federal government to buy the near-empty state prison in rural Thomson, Ill., to house maximum security federal inmates and lease a portion of the prison to the Department of Defense to house detainees from the U.S. detention center at Guantanamo Bay, Cuba. The suspected terrorists from Gitmo will not be allowed visitors and the facility will be at least as secure as a super-max facility. The decision is part of a plan for shutting down the controversial Guantanamo detention center. OK, back to the  Sheley hearing.....

In the next few minutes two more members of the accredited press arrive and three of the attorneys from the Attorney General's office for the prosecution and two of the lawyers for the defense. Bill Elward, Micheal  Atterberry and Steve Plazibat from the AGO take their seats in front of where I'm sitting. Lead defense counsel, Jeremy Karlin comes in with new co-counsel Anthony Vaupel.  They take a seat at the defense table, Karlin opens his laptop and they look ready for business. Knox County State's Attorney John Pepmeyer and John Hanlon from the State Appellate Defenders Office won't be in court today.

Right at 1:30 Nicholas Sheley is escorted into the courtroom by four (pretty big) corrections officers from the Pontiac State Prison. He is wearing his tan color prison garb, is fully shackled at his waist and feet. I notice instead of the rubber sandals worn at the county jail, Sheley has on some canvas sneakers. One of the CO's keeps hold of a ring on Sheley's waist chains until he is seated. There are a few Knox County Sheriff deputies and bailiffs in the courtroom as well. As soon as they have Sheley situated, Judge James Stewart takes his seat at the bench and the hearing is under way.

Judge Stewart explains that the scheduled teleconference didn't work out so we are here to do the same business. He first said they couldn't get the  prison on the call, and then said, "well, not to where Mr. Sheley was". Stewart also said that he has four issues that he wants to cover today :

1) Defense co-counsel Anthony Vaupel to update the court on his progress of familiarizing himself with the  case.
2) If the state has complied per Supreme Court rules 412 ( Disclosure to Accused )
3) If the defense has complied per Supreme Court rules 413 ( Disclosure to Prosecution )
4) There is a scheduling motion to be heard.

Judge Stewart asks what the state has on their agenda for today? Bill Elward stands to speak for the state. Elward says they want to set a trial date. Previously the trial was expected to start in October or November 2010 before lead counsel Public Defender James Harrell left the defense. The state is asking for a realistic date that they can work backwards from to set deadlines. Stewart agrees there have been issues with lawyers and other collateral issues that make it necessary to reset the schedule.

Anthony Vaupel rose to address the court. He informs the court that he has been able to read through all of the discovery (over 10,000 pieces of evidence), the court filings, and has reviewed most evidence on disk.
Judge Stewart asks where the other attorneys on the defense are in reviewing what has been submitted in the case? Jeremy Karlin stands and informs the court he has read the entire case multiple times. He adds that he can't speak for Mr. Hanlon, but when they have discussed the case Hanlon is able to speak intelligently about the case. ( I checked my notes and at a case management hearing six months ago, on December 4, 2009, Mr. Hanlon answered that question by saying," all but the last box".)

Judge Stewart says well," How about October or November, does the state have all of it's evidence and it's investigation done?"(Stewart had originally targeted sometime between May and October 2010 for the trial.) Jeremy Karlin says he doesn't see anyway  they can be ready by then. The question of the Motions in Limine for "course of conduct evidence" remains unanswered.

In 2009 the defense filed a Motion in Limine To Exclude Evidence of Other Alleged Crimes or Other Alleged "Bad Acts" at Trial, that hasn't been ruled on. In January 2010 the prosecution filed it's response to the defense Motion in Limine, their first Motion in Limine to admit Course of Conduct Evidence and simultaneously filed a Motion to Seal their Motion in Limine and any defense response because it contains evidence that may or may not be presented as evidence at trial and could taint the jury pool. At several previous hearings Karlin has referred to this as the $64,000 question because he can't comply with Supreme Court rule 413 as to expert witnesses and an affirmative defense until he knows what and how the state intends to use the evidence at trial. The state has contended they can't make that decision until they have some idea of what type of defense will be used. In court documents filed in March, Stewart ruled they would keep the motion sealed until there is a hearing to determine what evidence will be admitted, then the prosecutors will redact inadmissible portions.

Judge Stewart asks Karlin how long after that question is decided would the defense be ready for trial? Karlin replies February or March of 2011. Michael Atterberry stands and tells the court the state will be prepared to try the case then. Stewart says he is not ruling out January, and tentatively sets January to March 2011 for the trial unless circumstances arise that would interfere with that time period. The judge says they need to set deadlines for depositions and a close date for all motions to be filed.

Judge Stewart then asks if  the state has fully complied with 412? Michael Atterberry said, " We believe we have substantially, we're trying to provide what the defense motion just asked for, we have contacted the lab." (This is the first I've heard of this motion, I'll have to see if I can get a copy.) Stewart asks, " Does the defense feel they have complied with 413? Jeremy Karlin replies,"To the extent we know what our defense is."

Atterberry tells the court,  the state can re-plead their Motion in Limine and  asks for 3-4 months to prepare. Stewart says July or August for the state to re-plead and 30 days for the defense to respond, it shouldn't take as long for the defense to respond as it does the state to prepare to re-plead.. Karlin says any information about how the state intends to narrow.....the state conceding is good; however, that doesn't eliminate the defense need for the court to hear live testimony. Atterberry says 3 months needed. Stewart asks if it's necessary for the state to re-plead? Michael Atterberry says the state will do it as an offer of proof by July 1, June 15 at the earliest.

Stewart says if Mr. Karlin decides he wants to have testimony heard the court is available, and adds the deadline for the state to re-plead as an offer of proof is June 30 and then we need to have a case management hearing in July. Karlin says the defense would like an opportunity to respond.The judge says how much time needed to respond? Karlin tells the court 60 days to draft is reasonable, 60 days to respond. Then Karlin must have reconsidered because he says," I agree it's harder to re-plead, how about 45 days?". Judge Stewart responds," 30 days should be enough time, July 30 to respond, and a case management conference August 6 at 1:30.

Judge Stewart asks if the defense can disclose their defense based on the information they have? Karlin says they have done that, but not an affirmative defense, adding the defense can do that within 21 days of the hearing to decide the Motion in Limine. Stewart says 21 days from now. Karlin stands his ground, he tells the judge he doesn't mean to be obstinate but there are some investigations that aren't completed. Stewart tells Karlin he wants them to disclose some affirmative defense by June 30. Karlin answers they (the state) are entitled to know when I know. Stewart says it has been 2 years, it can be amended. ( It seems as though the judge is trying to be as fair as possible here, the state has conceded to re-plead their motion, so the defense can offer up some type of defense.)

Bill Elward stands and asks the court for some confirmation as to the dates that have been set. He lists
offer of proof 6/30, defense response 7/30 and case management hearing 8/6.
Karlin isn't happy with this schedule, he says,"We have addressed this issue, the schedule has us telling you an affirmative defense on the same day." Judge Stewart again says, after 2 years you should... Karlin interjects  but we will have additional information to obtain.

Anthony Vaupel says something about a motion for fingerprint evidence.(This must be the motion mentioned earlier by Atterberry.)  We just got the motion yesterday,Atterberry replies, we have conceded, we'll see if the information supplied is ok. Vaupel asks the court if this can be addressed at the case management hearing on 8/6. Stewart must have agreed because the next thing I heard was an order will be submitted.

Court is recessed. 

The DOC guard grabs the hoop on the back of Sheley's shackle. Sheley takes a scan of the gallery and he is led from the courtroom with his entourage of security to head back to Pontiac Correctional Facility. I spoke with someone who saw them arrive today who said Sheley and  the four guards made the 2 hour trip in 2 vehicles. Sphere: Related Content

Nicholas Sheley Has Been Moved Again And Scheduled To Testify Next Week In His Brother's Trial

I received notification tonight that Nicholas Sheley has been transferred to Pontiac Correctional Center as of 12/4/2009.

The following information is provided on the Illinois Department of Corrections website:

Pontiac Correctional Center

Opened: June 1871

Capacity: 1,058

Level 1: Maximum-Security Adult Male

Level 3: High Medium-Security Male

Total Average Daily Population: 1,612

Average Age: 34

Average Annual Cost Per Inmate: $33,031.00

The facility consists of a total of 63 buildings, which comprise of more than 744,000 square feet. The facility sits on a 37-acre site, with 32 acres being enclosed by fencing. Pontiac Correctional Center houses the following offenders: segregation, condemned protective custody, mental health, administrative detention reintegration management and medium security.

Sheley was also in court today (12/4) in Galesburg, IL for a case management hearing in the Ronald Randall murder case. I will put up an entry from this hearing later, there was a lot of legal jargon thrown around that I need to research and look at the motions discussed in the hearing before I can transcribe my notes. (Yes, I wrote it, but I don't know what all of it means) LOL

Nicholas Sheley (NS) is scheduled to testify for the defense in his brother Joshua's trial on Wednesday, December 9, in Whiteside County. We'll see if Nick follows through.....you just never know with him. Joshua Sheley (JS), of Rock Falls, is charged with concealment of a homicidal death and obstructing justice. JS is alleged to have helped his brother, NS, hide the body of Russell Reed, 93, Sterling, who was killed in late June 2008.

NS is charged with killing Reed before he allegedly went on to kill seven other people in two states over the next week. Sheley will stand trial for the death of Ronald Randall, 65, of Galesburg first. That trial is tenatively scheduled Late Summer or Early Fall 2010.

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Sheley Reception At Illinois Department Of Corrections

K77192 - SHELEY, NICHOLAS T.

Parent Institution: Stateville Correctional Center
Inmate Status: IN CUSTODY
Location:
Discharge Reason:
___________________________________________________________________________________
VITALS
__________________________________________________________________________

Date of Birth: 07-31-1979
Weight: 190 lbs.
Hair: Brown
Sex:Male
Height: 5 ft. 10 in.
Race: White
Eyes: Blue

__________________________________________________________________________________

MARKS, SCARS, & TATTOOS _________________________________________________________________________
TATTOO, CHEST - SPIDER, WOMAN,"MONICA"
TATTOO, ARM, RIGHT - REAPER,WIZARD,DRAGON,CRYSTAL BAL
TATTOO, ARM, LEFT - CROSS,RIBBON,SUN W/ FACE
TATTOO, ABDOMEN - "SHE" ; L FGR: "NICK"
TATTOO, LEG, LEFT - NIKE SYMBOL/"JUST DO IT"

_________________________________________________________________________

ADMISSION / RELEASE / DISCHARGE INFO
__________________________________________________________________________________

Custody Date: 11/06/2009
Projected Parole Date: 10/17/2012
Paroled Date: --
Tentative Discharge Date:
Discharge From Parole: 10/17/2014
__________________________________________________________________________________
SENTENCING INFORMATION
__________________________________________________________________________________

MITTIMUS:09CF225

CLASS:2

COUNT:3

OFFENSE:AGG BTRY/HARM/PEACE OFFICER

CUSTODY DATE:04/17/2009

SENTENCE:7 YEARS 0 MONTHS 0 DAYS

COUNTY:KNOX

SENTENCE DISCHARGED?:NO
__________________________________________________________________________________
MITTIMUS:09CF225

CLASS:4

COUNT:1

OFFENSE:CRIM DMG/GOVT PROP/EXPL/<$500

CUSTODY DATE:04/17/2009

SENTENCE:1 YEARS 0 MONTHS 0 DAYS COUNTY:

KNOX SENTENCE DISCHARGED?:NO __________________________________________________________________________________

MITTIMUS:00CF49

CLASS:1

COUNT:1

OFFENSE:AGGRAVATED ROBBERY CUSTODY

CUSTODY DATE:05/03/2000

SENTENCE:6 YEARS 0 MONTHS 0 DAYS COUNTY:

WHITESIDE SENTENCE DISCHARGED?:YES ___________________________________________________________________________________

MITTIMUS:97CF215

CLASS:4

COUNT:1

OFFENSE:POSS CANNABIS/30-500 GRAM/

1ST CUSTODY DATE:08/09/1999

SENTENCE:1 YEARS 0 MONTHS 0 DAYS

COUNTY:WHITESIDE

SENTENCE DISCHARGED?:YES

___________________________________________________________________________________
MITTIMUS:97CF215

CLASS:4

COUNT:1

OFFENSE:CARRY/POSSESS FIREARM/

1ST CUSTODY DATE:08/09/1999

SENTENCE:1 YEARS 0 MONTHS 0 DAYS

COUNTY:WHITESIDE

SENTENCE DISCHARGED?:YES

Note: When I first checked the IDOC website and brought the information over to the blogger Sheley's inmate status was listed as RECEPTION, when I went back to verify I had all of the information correct a few minutes later his inmate status had changed to IN CUSTODY. I don't know for sure if this means he has now been assigned to Stateville to serve his sentence. When I find out I will update this entry.

Another thing I want to note is that when Nicholas Sheley was sentenced to the seven years, James Harrell asked the court if this sentence was eligible for the 50% . Judge Mathers told him that is up to the Department of Corrections. Actually the issue is not so subjective. As noted above the 50% does apply and evidently he is given time from the date of the incident. Having said all of that, it will be a long time before if ever Nicholas Sheley walks out of jail. He still has to stand trial for the deaths of 8 people he is accused of killing in late June 2008.

Since 1978 Illinois has not used indeterminate sentencing (parole) in our prisons, our prison system uses determinate sentencing. This massive reform, widely supported by both the offender and victim community alike, and widely supported by the entire law enforcement and most of the legal community, took much of the politics and randomness out of prisoners' sentences by eliminating parole.Parole was a wildly discriminatory system, never applied consistently, and very subject to human error and politics.

Under determinate sentencing all prisoners except murderers are eligible to earn up to half off their sentences but ONLY measured objectively by their own good behavior - not some politically appointed board. Every day they are good, they earn a day off their sentence. (Some serious non murder cases like aggravated rape can only earn 15% off and murders as of 1993 can not earn any time off.) Any bets on now long this guy can behave?

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