Nicholas Sheley Trial...Let's Get A Move On....August 12 and 25th Hearings

The last two weeks have been quite busy in Knox County, IL with preparation for the murder trial of 32 year old Nicholas T. Sheley. The last couple weeks have been busy for me as well, but not with blogging, so I find myself trying to catch up now.

The trial officially got started today with an orientation for the first group of approximately 100 prospective jurors this morning and a motion hearing this afternoon. I'll get to that in my next post, but first I want to talk about the hearings in preparation for the trial and share some pictures I had an opportunity to take after the final case management conference on August 12, 2011. There was also a hearing called to hear a defense motion about security issues for trial on Thursday, August 25.

August 12 hearing

From the beginning this looked like this could be one of the more interesting pre-trial hearings to date. I learned there would be some witnesses testifying on behalf of the state, one of those witnesses being Holly Sheley (Nicholas Sheley's wife).

When Sheley came into the courtroom I was somewhat surprised to see he had his hair spiked up and the makings of a strange little thin mustache and goatee started. He changes his look frequently but just a few weeks ago he was clean shaven and had a buzz cut....and I didn't know inmates had access to "gel". I think it's gel...if not gel maybe we don't want to know. (◐.̃◐) Of course he had his bright yellow prison jumpsuit (aka escape suit) and was fully shackled at the feet, wrist and waist. I had heard at a previous hearing (that I missed) it had been decided that his hands would be free when in front of the jury, but was a little taken aback when Judge Stewart ordered his waist and hand cuffs be removed today. Not really anything to worry about though, the guards that accompany him from the DOC are pretty fierce looking dudes and there are Knox County Sheriff deputies and court security as well.

To start off the hearing Jeremy Karlin was given packages from the Circuit Clerk that were return of subpoena's from several media outlets. Oh oh? What's next...Change of Venue Motion? Someone had left a comment here that this motion would be filed today, but no one I spoke with knew anything about it. As it turns out there was no COV motion....but the defense did request funds to take another phone survey in Knox County to see what the "climate" was towards his client because of pretrial publicity. ( The defense did an extensive phone survey, back in late 2008 early 2009 and requested a COV based on the results, at that time the judge denied without prejudice because it was too early in the case.)

Bill Elward, Assistant Attorney General objected, on behalf of the state, to another survey being done stating there has been practically no media given this case in 2011 and stated that jurors can know about a case but still be fair and impartial.

Karlin raised his eyebrows and pointed out the stack of responses from media the clerk had just given him as a response to Elward's claim of no media and cited Irwin V Dowd which is case law that basically states a potential juror who has been prejudiced by inflammatory media can't be trusted to be candid about their ability to be impartial in Voir Dire. Karlin  added there would be no harm or prejudice to the state, he is not asking for a Change of Venue....at this time (◔_◔) but was just trying to make a record.

Judge Stewart denied Karlin's request for a new survey. Stewart said that pretrial publicity doesn't mean a biased jury, adding if the defense had asked for this back in May or June he may have considered it, but we are now 2 weeks from trial and over 700 people have already been summoned. The motion is not timely
and under  Supreme Court Rules Voir Dire is the best way to determine if potential jurors have preformed opinions. Deny request, not timely.

( This wasn't said in court but should be noted, this untimeliness does not reflect on Jeremy Karlin; responsibility for that falls squarely in Nicholas Sheley's lap. Karlin was removed from the case on April 25 and reappointed to the case on July 19 because of Sheley's desire to represent himself (Pro Se). IMO, He is damn lucky the court let him have Jeremy Karlin back.....and that Karlin was willing to come back on. I also want to note the discussion about the survey came in at the end of the hearing but was more "fluid" to present it together here together with return of subpoena info.)

The next issue was a defense motion for individual jury sequestration during voir dire (questioning). Karlin argued  that questioning the jurors individually prevents spoiling the rest of the jurors if one should say something inflammatory or prejudicial concerning the other crimes in the alleged killing spree.The judge denied this request, individual voir dire would slow things down too much, they will be done in groups.
The discussion segued into preparation of the jury questionnaires and how they will be handled. Most of the preparation was done earlier by the attorneys from both parties. Today it was decided instead of mailing them out to prospective jurors, each day a group would be brought in for an indoctrination (basic facts of the case, admonitions about not watching any coverage of the case or talking to anyone about it, etc.) and then will be taken downstairs to the basement to fill out the questionnaires where they can be supervised so as not to collaborate and review the witness lists (this is a small county need to be sure not related to each other....just kidding....kinda LOL) and then they can leave for the day. The attorneys will review the questionnaires and the court will call back a number of them for the actual Voir Dire the next afternoon. (The next morning a new group will come in for indoctrination, etc....there are 4 groups available if needed to seat a jury.)

The defense has a motion to quash a video taped deposition because the transcript of the video wasn't signed. The state asked the court to look at the video adding they have the videographer here to certify the tape. Bill Elward told the judge this is vital relevant evidence, she waited on him, saw the video and verified it was accurate. He said the defense is being hyper-vigilant in wanting to quash because the transcript isn't signed. Jeremy Karlin made a comment, " Since we strolled into argument on this motion is it possible to address...(objections made during deposition)" Judge Stewart told him to wait until after the video is shown.

The reason for video taping the deposition was the witness was terminally ill and would not be alive by the time this case made it to trial.(Evidently she didn't live long enough to sign the transcript) This witness is a woman who waited on Sheley at the HyVee gas station on the evening of June 28, 2008. She "allegedly" sold Sheley a six pack of Bud-light, some cigarettes and a lighter at about 8:30 pm.  She could testify to Sheley having blood on his face and his hands. She noticed it mainly because his hands were shaking which prompted her to look closer at him.(This was allegedly right after Ronald Randall was killed and his body was thrown next to a dumpster behind the grocery store) In her deposition she pretty much narrated the in-store video of Sheley's transaction and identified him. She was cross examined by Jim Harrell (onetime lead defense) She didn't see the vehicle Sheley was in, but the Mobile station across the street picked it up on their video when Sheley drove Mr. Randall's truck into and left the parking lot at Hyvee gas. The Mobile video also captured Sheley when he stopped at that station for $3 of gas in the stolen van when he came into town off the interstate at 8 pm.
(observation...Sheley not looking at the video...reading papers, taking notes, twiddling thumbs)

After the video was shown Elward said the video is accurate and reliable...(which is why the witness would have signed the transcript ) and it's essential to the state's case. He then presented the court with the witness's death certificate (died 2 weeks after the deposition was taken).
Karlin countered that he stands on the motion. Supreme Court rule 414- rule 207. He again points out that objections were made contemporaneously and the court needs to address the objections.
Judge Stewart  said something about the entire subsection and scrivener rules (sometimes this judge talks fast and barely opens his mouth when he speaks so I have trouble catching all he says) the signing requirement is only to verify the statements. Stewart rules under the circumstances shown by the state and assuming a foundation is laid first at trial he will not prohibit the video.

sorry, couldn't resist

Court takes a ten minute break. When we come back Bill Elward calls a witness to the stand that installed the cameras at the Mobile station across from the HyVee station. After the witness is sworn in, Jeremy Karlin rises and says, " This isn't a dog and pony show" and asks the court, " Is it appropriate to use demonstrative exhibits when they still must lay a foundation during trial?"

Elward responds they should be able to refer to the digital video in opening statements.

 (JMO, I think that would be powerful to use the video showing Sheley coming into and leaving town in their opening statement.)

Judge Stewart says he is not prepared to make foundational rulings.
Karlin says he objects to this testimony, this hearing is about the evidence deposition. Stewart sustains Karlin's objection. Elward rose and interjected, " Can I say this witness is very ill and came here today."
Karlin says we are not here for this purpose and the judge agrees with Karlin. No witnesses today. Holly Sheley was supposed to testify that she saw a lot of blood in Randall's truck when Sheley returned to Sterling the night of June 28 and a man was here from RockIsland who owned the stolen truck Sheley allegedly drove here and the clothes Sheley had on in HyVee.

There was some other cryptic discussion between Michael Atterbury, for the state, and Jeremy Karlin, for the defense, about a state's motion for pretrial determination that should be a motion for clarification of course of conduct (prior bad acts)evidence. Karlin says this type of evidence is risky...we won't take a position, it's inappropriate as it comes in referencing inadmissible evidence in pleading and open court. We are not the ones bringing it up. Karlin addressing the court, " I think the state overstates your ruling". Atterbury says the motion is filed under seal and we are not using specifics.
Bill Elward rises and says something about a motion regarding post arrest statements made by Sheley. Elward says, this is a voluntary statement made by a fairly sophisticated defendant after his arrest. Allegedly Sheley said to an arresting officer, "Are you a Christian? I have done things...."
Judge Stewart says he will not make predeterminant rulings,  but will rule that is a voluntary statement.

Court is recessed........we thought until August 29 when jury selection started, but as I said above, a hearing was scheduled for August 25 at the last minute to hear a motion about security issues.

August 25 hearing

I won't go into great detail about this  hearing because all of that stuff is fluid and probably best left unsaid. In order to not prejudice the jury it was decided during trial Nicholas Sheley will wear dress clothing purchased by his attorney. Sheley's attorney wanted him to be totally unshackled but conceded to a stun band on his leg so he can approach the bench for side bars. The state wanted him shackled at the feet to a ring in the floor and either have the jury taken out for sidebars or have the sidebars near the defense table. The judge decided that he would be unshackled with the stun belt so he can approach on sidebars. He will be well guarded by officers in plain clothes and uniform....they will be everywhere! Stewart felt any other way would be too prejudicial, but admonished Sheley ANY behavior issues he will waive the lenient custody status and the jury would be advised of the custodial status change...so it's on Sheley.
After court was over,  I hung around in the parking lot with my camera until they brought Sheley out. These pictures are just one example of the security measures taken when transporting Sheley the 2 hours each way from Stateville.

Big Guy, Bigger Gun

coming out

with some of the big boys

Climbing into the cage for transport

Big Gun

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Nicholas Sheley...He Is, He Isn't, He Is, He Isn't, He Is Going To Stand Trial On August 29, 2011, Isn't He?

Nicholas Sheley at Stateville Correctional Institution

Nicholas T. Sheley is a 31 year old man from Whiteside County, IL who is accused of engaging in a week long killing spree at the end of June 2008. The alleged killing spree resulted in the bludgeoning deaths of eight people in IL and MO, with victims ranging in age from a 2 year old boy to a 93 year old man.


Jury selection for the first murder trial related to this alleged 2008 killing spree, for the death of Ronald Randall, 65, of Galesburg, IL is scheduled to begin on August 29, 2011 in Knox County, IL. As we are on the eve of trial, this seems like a good time to look back at the progression of this case the last three years.

This post and the timeline linked here  can also serve as an introduction to the case for those who might not be familiar with the case but would like to follow the trial here at Katfishponders...This timeline is compiled of information from news reports made in 2008 as this case was unfolding. Even though some of the details included in these reports may come into the trial for the case we will be discussing here, many will not, because what was reported in the media isn't evidence (actually much of what will be admitted remains to be litigated), but more so because Nicholas Sheley is charged and being tried for the death of the one victim in Knox County, not all 8 victims.

In earlier posts here at Katfishponders, I've referred to the progression of this case as a long and winding road because of the many twists, turns and delays this case has taken over the last three years. Many of the twists and turns can be attributed to choices made by Nicholas Sheley, but not all......

At the final pretrial case management hearing on August 12, the court sat a tentative date for opening statements to begin on September 6.....but the question is, given the history of this case.....Will it?

He is...He isn't?
The Arrest and Indictment...

Nicholas Sheley was arrested in Granite City, IL on July 1, 2008. Even though it's alleged by authorities that Sheley's killing spree started in Whiteside County and ended in Festus, MO, it was decided that Nicholas Sheley would be charged in Knox County, IL first. On July 2, 2008 Sheley was transported to Galesburg, IL and charged for the murder of Ronald Randall.


He is.... pleading not guilty to the charges against him and is being held on a 10 million dollar bond  in the Knox County Jail to await trial. Sheley is accused of kidnapping, killing, and robbing Ronald Randall 65, of Galesburg on June 28, 2008. He is also accused of stealing Randall's 2007 Chevy Silverado pickup truck.

He isn't....At the start of a hearing on September 29, 2009 Nicholas Sheley said, “Your honor, I would like to change my plea to guilty.”

He is.....By the time the hearing came around for Sheley to officially change his plea to guilty he had changed his mind again and let his not guilty plea stand.

He isn't.... being held in the Knox County Jail anymore....Sheley awaited trial in the Knox County Jail until he was convicted and sentenced to prison for 7 years in October 2009 for assaulting corrections officers at the Knox County Jail. After a stint in Pontiac Correctional Center,  Sheley was moved to Stateville Correctional Center this Spring.

( This is just my opinion, but I think Mr. Randall's truck 'may' have been the most important piece of
evidence that law enforcement had to tie all of the deaths together, which 'may' also explain why Sheley is being tried in Knox County first. The 2007 pickup is equipped with OnStar which assisted in tracking the vehicle and based on the discovery addressed in various motions that I've seen, there was (figuratively) a truck load of DNA evidence from various victims found in Mr. Randall's  truck  when it was recovered in St. Louis, MO.)

 A Knox County Grand Jury handed down a 17 count Bill of Indictment against Nicholas Sheley in August 2008. Counts 1-10 are first-degree murder charges. The indictment alleges that on June 28, 2008 Sheley caused blunt-force trauma to the head of Ronald Randall that resulted in Randall's death. Counts 11-17 allege that on June 28 Nicholas Sheley kidnapped Ronald Randall, robbed him and stole his 2007 Chevy pickup. Three of the murder counts listed in the indictment  include aggravating factors that made this a death penalty eligible case. The aggravating factors listed allege the blunt-force injuries to Ronald Randall were the result of heinous behavior and wanton cruelty to someone age 60+. Sheley was informed that the state has 120 days to decide if they will seek the death penalty.

He is... facing the death penalty. The state filed the necessary paperwork on September 4, 2008 to seek the death penalty in this case. For 2.5 years this was litigated as a capital murder case.

He isn't.... facing the death penalty.....In March of 2011 the Governor of Illinois,  Patrick Quinn, signed legislation to abolish the death penalty in IL. The new legislation actually didn't take effect until July 1, but the state withdrew their intent to seek the death penalty shortly after Governor Quinn signed the legislation.

As we head into this trial, the minimum sentence for a 1st-degree murder conviction in IL is 20-60 years. If the aggravating factors included in the indictment are found to be present by the jury, Sheley will face natural life in prison. The possible penalties if convicted for the other counts in the indictment are as follows: counts 11-15, two counts of aggravated kidnapping, two counts of aggravated vehicular hijacking and one count of armed robbery — all Class X felonies punishable by six to 30 years in prison (60 years if aggravators are found ). Counts 16 and 17 are one count of robbery, a Class 1 felony; and one count of possession of a stolen vehicle, a Class 2 felony with punishment ranging 3-15 years, a $25,000 fine and 2 years supervision after release.

Nicholas Sheley will be represented by court- appointed attorney Jeremy Karlin in this trial, but many of the twist and turns (and delays) in this case so far have revolved around choices made by Nicholas Sheley about his representaion......

 He is....He isn't?
Sheley's Counsel....musical chairs?

 After Nicholas Sheley was declared indigent by the court, Knox County Public Defender James Harrell, was appointed to represent him. When the state announced their intent to seek the death penalty, Sheley became 'qualified' to have two attorneys that are members of the Capital Litigation Trial Bar to represent him . Jeremy Karlin, a private local attorney, was appointed as co-counsel on the same day the state filed their intent to seek the death penalty, September 3, 2008.When James Harrell requested a one week delay to allow Mr. Karlin to read all the discovery, Sheley asked to address the court. Sheley told the court he doesn't want a continuance of any kind. He went so far as to say if it is necessary to fire his attorney's then so be it.

 ~ He wants to represent himself round one ~ 


Within weeks (actually 9 days) Nicholas Sheley informed the court he wanted to fire both of his attorneys because of conflict in trial strategy (for one, they were dragging things out against his wish for a speedy trial), he also claimed they were ineffective counsel and dishonest. Because he couldn't afford to hire a private attorney, Sheley requested to represent himself (Pro Se). Harrell and Karlin contested Sheley's request, first based on a bonafied doubt of his fitness to stand trial and then on his inability to intelligently waive his right to counsel. After four months of fitness hearings and evaluations by state and defense mental health experts, Sheley was found fit to stand trial .

On January 31, 2010, the court found there was no conflict with counsel or evidence of ineffective counsel or dishonesty which left the issue of Sheley's Pro Se motion. Judge Stewart told the state they would be entitled to depose the mental health experts before he made a ruling as to the defendant representing himself. When the state requested the experts be advised of  recent incidents at the jail involving the defendant and asked that incident reports be submitted to the experts before they were deposed, Sheley requested a 10 minute recess to consult with his attorneys. When court reconvened the court was advised by Jeremy Karlin that Mr.Sheley withdraws all motions to remove his attorneys. Another He is....He isn't....that one week delay Sheley didn't want had just set the trial back five months....hmmm....makes this writer wonder, just what did he really want? ~ sigh ~

At the Jan 31 hearing John Hanlon attempted to enter his appearance with the court per Supreme Court rule 416, but was not allowed until the state was able to get clarification as to the rule. (Hanlon is from the Office of the State Appellate Defender in the Capital Trial Assistance Unit 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.) Hanlon later became a member of the defense until March 2011 when the death penalty was abolished in IL.


~ He wants to represent himself rounds 2 and 3 ~ 


While these 2 attempts to represent himself weren't for the trial related to the 2008 alleged killing spree, I include them here because they also represent choices made by Nicholas Sheley in his dealings with the Knox County judicial system.
   
In April 2009 Nicholas Sheley was charged with three counts of aggravated battery to a correctional officer, one count of aggravated assault and one count of criminal damage to governmental property stemming from the April 17 incident at the Knox County Jail where Sheley has been held awaiting trial for the 2008 murder charge. At an April 23 custody hearing for these new charges Sheley told Judge Dwayne Morrison he doesn't want James Harrell to represent him and would file a motion to represent himself.
At a hearing scheduled to hear argument on Sheley's motion to represent himself, on May 15, 2009, Nicholas Sheley  informed the court he had changed his mind and decided to accept Public Defender James Harrell as his attorney in the jail assault case....geesh.... 

He is, He isn't...

At a case management conference on September 8, 2009, after James Harrell filed a motion for a continuance, Sheley presented a prepared statement to the court, he said,“At this time, I’m going to challenge the effectiveness of my counsel.” Sheley went on to say he was dissatisfied with his counsel’s direction and wanted nothing to do with the motion considered at the conference, which was to delay the trial’s beginning to give the defense more time to look at the state’s evidence.“If my counsel makes an error, I suffer the blight, I do the time. I do not need a continuance,” said Sheley. This time around the court denied Sheley's latest request to represent himself based on the court's finding that Jim Harrell was providing effective counsel and given the previous mental health examinations as well as the fact the outcome of the battery case may be allowed into the trial for the 2008 murder case it would be improper to allow him to represent himself.

He is, he isn't...

As it turns out, Nicholas Sheley did get his way and got rid of James Harrell....at least for the murder case. In January 2010 the Public Defender filed and was granted a motion to be released from the case, citing  a “total breakdown in the attorney-client relationship” that would prevent him from effectively representing the defendant.(This was shortly after Sheley's conviction on the battery charges. IMO, Harrell did the best he could with that case given the fact the state presented a video of the Knox County jail incident.) At the same hearing, Judge James Stewart appointed Jeremy Karlin as lead attorney and Anthony Vaupel (another private attorney) was added as co-counsel to Jeremy Karlin. Vaupel remained on the case until March 2011 when the death penalty was abolished and Sheley was no longer entitled to 2 attorneys. As I mentioned earlier, John Hanlon left the case at this time as well........leaving  Jeremy Karlin alone to represent Nicholas Sheley...but not for long.....

~ He wants to represent himself round four ~ 

March 29, 2011  was the first hearing since the state had abolished the death penalty. John Pepmeyer informed the court  the state is filing a motion to "de-certify" the death penalty in this case, adding the death penalty is no longer an available remedy in this case. Pepmeyer also informed the court that counsel for both parties met prior to the hearing and agreed to September 19, 2011 for a trial date. When Judge Stewart attempted to confirm that date with defense counsel, Karlin replies he has no authority to set a trial date because of the document Mr. Sheley has just handed him....a 59 page handwritten Pro Se Motion that requests he be allowed to fire his attorney and represent himself. He also asked the court to block defense counsel from responding or objecting to his motion and to block any attempts at further mental health evaluation. The links to that motion can be found in my report from that hearing.,

He is....
On April 25, 2011, Judge James Stewart ruled that he would allow Nicholas Sheley to represent himself in his murder trial.Judge Stewart also set a trial date for June 20, 2011.

Before Stewart made his decision, both prosecution and defense argued against Sheley’s motion.
Defense Attorney Jeremy Karlin warned Sheley’s temper could hamper his ability to get a fair trial.
“My greatest concern, your honor, is my client’s ability to maintain his temper,” he said.
The prosecution  noted Sheley will have only limited access to certain documents necessary for his trial because he is being housed at the Illinois Department of Corrections. Sheley, for instance, doesn’t have access to a computer at the prison. Stewart concluded by saying it wouldn’t be in Sheley’s best interest to represent himself. But he added defendants have an “absolute, Constitutional right” to relieve their defense counsel and because of the ruling, Jeremy Karlin was removed from the case.

 I was on vacation much of May and June so I missed some hearings but here are links to the reports of the hearings from Galesburg.com:
Knox County prosecution requests delay in Sheley trial
Sheley trial a go, for now
Sheley trial pushed back to August
Sheley says IDOC impeding his defense
Prosecutors want Sheley returned to Knox County County spends $1,000 on computers for Sheley
Sheley, accused of murder, stays put in Joliet
I think it's fair to say the state and the county have went to great expense to ensure that Sheley was able to prepare for representing himself at trial. I'm sure they do not want to have to try this case again!

He isn't...

On July 10, 2011, Nicholas Sheley once again had a change of heart and wrote the court the following letter. I included the letter here because it is only 2 pages and speaks for itself. You can click on each letter to enlarge it.

 

 A hearing was scheduled for July 19 to decide on Sheley's request for Jeremy Karlin to be re-appointed as his counsel. During that hearing Judge Stewart said he would recognize the letter from Sheley as a Motion.

Bill Elward from the IL Attorney General's office told the court it's the state's position that this was gamesmanship. In his letter to the court, Sheley said a series of lock downs at the Stateville Correctional Center have denied him access to materials needed to prepare his case. Elward said he spoke with the

Illinois Department of Corrections and learned there was an altercation on July 8, which caused a lock down through July 11, however, it did not prevent Sheley from obtaining materials.

Elward said he had spoken with Jeremy Karlin both on the phone and in person. Elward said that Karlin told him  he could be ready for trial on August 29 if the prosecution agreed to provide a list of witnesses and evidence well before the trial, as well as advise him which witnesses prosecutors intend to call each day. Elward said the position of the state is, "If he wants to have a trial, he can have a trial. If he wants a trial with counsel, he can have one ... let's decide this issue today." 

 Judge Stewart made a comment about legal gamesmanship and case law that I didn't catch entirely, however I did hear him say that because the state doesn't oppose the request for Mr. Karlin to be reappointed, he would allow it, adding it's against his better judgement because Sheley had knowingly and voluntarily waved his right to counsel.

Jeremy Karlin approaches Nicholas Sheley and shakes his hand. As Sheley was led from the courtroom we made eye contact for a few seconds. I couldn't tell for sure if he was happy or mad....he had a look on his face much like the one in the mugshot above but his lips were pulled into a circle as if he was trying to whistle....he didn't look particularly happy. If his goal is to get to trial he should be happy....Judge Stewart said he expects a jury to be seated  and opening statements started on September 6, 2011. Ya think?

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Nicholas Sheley Murder Case - IL Governor Abolishes The Death Penalty



Nicholas T. Sheley at Pontiac Correctional Center 2011

 It has been quite some time since I have written about the capital murder case of Nicholas Sheley who is accused of killing Ronald Randall, 65, in Galesburg, IL on  June 28, 2008. I sure didn't plan to get so far behind, but Mr. Katfish has been quite ill the past several months and of course that is my main priority. I recently found out I can tap into the hospital's WiFi connection on my netbook, so here we go......

Although there have been a number of  hearings since my last report, not much happened during these hearings to actually progress this case towards trial, rather things have been pushed back...several times.  The "wheels of justice turn slowly" is not just a cliche, it's a reality. When I last wrote about this case the court was planning for the trial to start in early 2011. Now we are looking at the Summer or possibly Fall of 2011 before this trial gets under way.


When I started writing this post back on February 5 (after attending a hearing on the 4th), I had planned to try and work backwards to catch up on this case but it's just not going to happen. I'll just pick up from the most recent development that effects this case, and it's a big development ! On March 9, 2011, Illinois Governor Pat Quinn signed legislation abolishing the death penalty in Illinois, more than a decade after the state imposed a moratorium on executions out of concern that innocent people could be put to death by a justice system that had wrongly condemned 13 men. Quinn also commuted the sentences of all 15 inmates remaining on Illinois' death row. They will now serve life in prison with no hope of parole. I'll address the effect of this legislation on Nicholas Sheley's case in this entry.

For readers not familiar with this case, Nicholas Sheley is accused of killing eight people ( including Randall ) in a week long killing spree during the last week of June 2008.  Five of the other seven people were killed in Whiteside County, IL, a 20 year old woman, her 2 year old son and three men ages 25, 29 and 93. (Whiteside County is where Sheley is from.) An  Arkansas couple, both age 54,visiting the St. Louis, MO area were Sheley's last 2 (alleged) victims and were killed in Festus, MO. You can learn more about the week of Sheley's alleged killing spree and the weeks leading up to to it by clicking here to see an early post titled " Sheley's Trail of Terror".

With the death penalty abolished in IL, the maximum penalty Nicholas Sheley (if convicted for the death of Ronald Randall ) can face is a life sentence without the possibility of parole (LWOP).  From what I understand, the trial should start sooner, be shorter and less expensive (if convicted, no penalty phase to decide the death penalty).


Nicholas Sheley's defense most likely will consist of one lawyer instead of the three or four he has now. Jeremy Karlin is lead attorney on Sheley's defense team and would remain so. I'm not sure if the Office of the IL Attorney General would still assist the prosecution of this case, but wouldn't be surprised if they did because of the gravity of the alleged crimes. 

Because this is a capital case, Knox County has not been responsible for the costs of this case, funding has come from the Capital Litigation Trust Fund, that burden will now shift to the county and the unspent money in the Capital Litigation Fund will be reallocated to pay for services for victim’s families and law enforcement training.


In the mean time this case is status quo and will proceed as a death penalty case until the new legislation takes effect on July 1, 2011,  unless the state files a motion to withdraw the death penalty before then.
As of the February 4 hearing the next scheduled hearing in this case is a case management hearing on March 29, 2011. We should learn more then.

A final note, Missouri has not abolished the death penalty, so Nicholas Sheley may still face death if he is convicted for the deaths of Tom and Jill Estes.....whenever his case makes it's way there.

Galesburg.com

Chicago Tribune



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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.

Sphere: Related Content

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

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

Merry Christmas Letter From Nicholas Sheley (Accused Spree Killer Of 8 )

I have questioned myself whether to post this letter or not......because it is public record and accessable under The Freedom Of Information Act I have decided to go ahead and post it. I want to be clear that this is not evidence that will come into the trial and has no bearing on Nicholas Sheley's guilt or innocence. It does give a little insight into his thinking and what he thinks is funny.

I find this interesting because the hearing that Sheley describes took place on December 4, 2009, and he was still thinking about it enough to write a letter to Ninth Circuit Judge James Stewart three weeks later, and on Christmas no less.

I attended this hearing and can tell you that Bill Elward , Assistant Attorney General, who is one among several from that office assisting in the cases against Nicholas Sheley in Illinois was not, in my opinion disruptive in court. The attorneys on both sides of the aisle were frustrated. The judge did accuse them of arguing in circles and to stop it...several times....but noone was disruptive, just passionate.

There are certain rules the State and the Defense must abide by per the IL Supreme Court Rules. Because the State has the burden of proof, they seem to have more requirements as far as sharing discovery, etc....add the fact that this case is a Death Penalty case and no doubt there are more stringent rules. That doesn't mean the defense doesn't have obligations as well.

This is where the frustration seems to eminating from.....the State seems frustrated because they feel they have made their required disclosures. The State wants the defense to share the list of Expert witnesses they plan to use and a theory of defense (just in general, such as alibi, self defense, insanity (In IL there is no insanity defense, instead our state has adopted a "Guilty but Mentally Ill" verdict; however, the burden of proof is on defendant for this defense).

The Defense seems frustrated because they don't feel they should have to decide on these issues until the court has ruled what, if any, Course of Conduct ie. prior "bad acts" evidence will be allowed in the trial either during the guilt/innocence phase or in mitigation for sentencing if there is a conviction. The state doesn't want to decide how they will use this Course of Conduct evidence until they know what type of defense will be used. Jeremy Karlin, lead counsel for the Defense refers to this as the $64,000 question. Eventually the Judge will rule on this.

If you have trouble reading the letter as it is posted on the blog, here is a link to the letter on my docstock account.
Feel free to leave comments with your thoughts. Any readers trained in hand writing analysis?


Sphere: Related Content

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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