Drew Peterson: Murder conviction appeal

8/13/2019 Drew Peterson: Murder conviction appeal

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NO. 3:13-0157 _______________________________________________________________________ _

IN THEAPPELLATE COURT OF THE STATE OF ILLINOIS

THIRD JUDICIAL DISTRICT

PEOPLE OF THE STATE OF ILLINOIS,) Appea !"#$ %&e C'"( '% C# "%P a'*%'!!-Appe ee, ) #! %&e 1+%& J '('a C'"( '%

) ' C# *% , I '*#'/)

. ) I* '(%$e*% N#.: 0 CF 102))

DRE PETERSON, ) H#*#"a4 e E a" 6 "$' a, J".De!e* a*%-Appe a*%. ) J e P"e/' '*

)

6RIEF AND AR8U9ENT FOR DEFENDANT-APPELLANT

C# */e !#" De!e* a*%-Appe a*%:

STE EN A. 8REEN6ER8 HAROLD J. ;RENTSTE EN A. 8REEN6ER8 AND ASSOC., LTD. CHICA8O-;ENT COLLE8E OF LA53 . JAC;SON 6OULE ARD, SUITE 1+


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TA6LE OF CONTENTS

POINTS AND AUTHORITIES ????????????????..???.'-'

NATURE OF THE CASE ?????????????????????....1

JURISDICTION ??????????????????????.??..?1

STATE9ENT OF FACTS ?????????????????.????.1-1+

AR8U9ENT

I. DRE AS DENIED A FAIR TRIAL HEN ATTORNE@ HARR@ S9ITHTESTIFIED A6OUT A PRI ILE8ED CON ERSATION ITH STAC@THAT HAD 6EEN RULED INAD9ISSI6LE, AND AS HEARSA@OPINION INSINUATIN8 DRE AS 8UILT@ OF 9URDER.???????????????????????????????13

II. DRE S PRINCIPAL ATTORNE@, 6@ SI8NIN8 A 9EDIA RI8HTSCONTRACT HEN RETAINED, CREATED A PER SE CONFLICT.

????????????????????????????..??+1

III. THE TRIAL COURT ERRED AS A 9ATTER OF LA IN AD9ITTIN8PASTOR SCHORI S TESTI9ON@, 6OTH AT THE FORFEITURE 6@

RON8DOIN8 HEARIN8 AND AT TRIAL, IN CONTRA ENTION OFTHE CLER8@ PRI ILE8E DOCTRINE.?????????????????????????????..?+s, 1## Ill. 2d 3$5, 3$9 (1999)3%

iles v. C"li=o!ni", 55% &.'. 353, 3$0 (200#)..3%

A. T&e p"#/e( %'#* ' *#% p"# e 4 a p"ep#* e"a*(e #! e ' e*(e %&a%D"e Pe%e"/#* ' e ;a%& ee* Sa '# '%& %&e '*%e*% #! $a '* &e"

*a a' a4 e a/ a '%*e// !#" a e a p"#(ee '* .

In !e 8"!!i"*e o= D"vies, 95 Ill.2d %7%, %#1 (19#3)..35 In !e 8"!!i"*e o= l"c , 155 Ill.App.3d 52, 5% (3 !d Dist.19#7)35ensen v. 'c Boc e!t, -o. 11?C?#03 (Dec. 1#, 2013)....37

&nited 't"tes v. /ent , 2#2 . ' pp. 2d 399 (E.D. " 2002)....3#:isconsin v. ensen, 79% -.:.2d %#2, %93 (:isc. 2010).39

B.

T&e p"#/e( %'#* ' *#% p"# e 4 a p"ep#* e"a*(e #! %&e e ' e*(e %&a%D"e Pe%e"/#* ' e S%a( Pe%e"/#* '%& %&e '*%e*% #! $a '* &e"

*a a' a4 e a/ a '%*e// !#" a e a p"#(ee '* .

1.T&e"e a/ '*/ !!'('e*% e ' e*(e %&a% e!e* a*% a/ "e/p#*/'4 e !#" S%a(Pe%e"/#* / '/appea"a*(e.

+. I*%e*% %# p"e e*% %e/%'$#* a% a ! % "e p"#(ee '* .

In !e ol"ndis ., 232 Ill.2d 13, %3 (200#)..%0

C.

E e* '! %&e (#$$#* a !#"!e'% "e 4 "#* #'* #(%"'*e app 'e/, %&e e

p"#(e// ( a /e #pe"a%e/ a/ a* '* epe* e*% (&e( #* a $'//'#* #! &ea"/a/%a%e$e*%/.

App!endi v. -eB e!se , 530 &.'. %$$ (2000)...%3 DoBlin* v. &nited 't"tes, %93 &.'. 3%2, 353 (1990)...%3+o>e v. &nited 't"tes, 513 &.'. 150 (1995)..%3

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. THE TRIAL COURT A6USED ITS DISCRETION IN AD9ITTIN8JEFFRE@ PACHTER S TESTI9ON@ 6ECAUSE THE STATE FAILED TOPRO IDE PROPER NOTICE OF THE TESTI9ON@ UNDER RULE202=4), HICH AS PREJUDICIAL PROPENSIT@ E IDENCE.

People v. :"!d, 952 -.E.2d $01, $05?0$ (2011)...%5&nited 't"tes v. P!ev"tte, 1$ .3d 7$7, 77% (7t Ci!. 199%)%5

People v. 8"son, 219 Ill.App.3d 7$, #0 (% t Dist. 1991)%5 Ill. . Evid. %%(;).....%5 Ill. . Evid. %0%(c)...%5 People v. D";;s , 239 Ill.2d 277, 295 (2010).%5&nited 't"tes v. lo nt, 502 .3d $7%, $77 (7t Ci!. 2007)..%$&nited 't"tes v. C"!!"sco, 3#1 .3d 1237, C.A.11 ( l".) 200% ...%$&nited 't"tes v. ' oc en, %05 .3d 537, 5%# (7 t Ci!. Ill. 2005)%7

I. DRE AS NOT PRO ED 8UILT@ 6E@OND A REASONA6LE DOU6T

People v. '>it , 1#5 Ill.2d 532, 5%2 < 5%3 (Ill. 1999) ...%9 People v. ive!", 9$2 -.E.2d 53, $5 (Ill. App. 2., 2011)...%9 People v. D" e ", 2013 :/ 597297#, (Ill. App. 1 st Dist., 2013) ...%9 People v. ones, %0% Ill.App.3d. 73%, 750 (Ill. App. 1 st Dist., 2010)..51

II. THE CU9ULATI E ERRORS DENIED DEFENDANT HIS RI8HT TO AFAIR TRIAL AND CAST DOU6T UPON THE INTE8RIT@ OF THISPROCEEDIN8.

People v. Fidd, 1%7 Ill.2d 510, 5%%


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NATURE OF THE CASE

This appeal arises from the conviction by a jury of Drew Peterson (Drew) for

the death of athleen. !o "uestion is raised about the pleadin#s.

JURISDICTION

$urisdiction is proper under %upreme &ourt 'ule *.

STATE9ENT OF FACTS

In early + +, Drew and his wife athleen encountered marital difficulties. ('.

-+ ).

/n $uly 0-, + +, athleen called the 1olin#broo2 Police, tellin# 3ieutenant

Teresa ernc 4 who responded to her call 4 that she had been served with a criminal

complaint for battery a#ainst %tacy Peterson (5%tacy5). ('. -66+7 - 68). athleen

intimated she was an#ry with Drew for obtainin# the complaint. ('. -6-*). %he said

Drew bro2e into her home at * + Pheasant &hase on $uly 9, + +, pushed her down on

the stairs and pulled a 2nife. Drew, accordin# to athleen, withdrew, sayin# he 5couldn:t

hurt5 athleen, threw down a #ara#e door opener, too2 off an earpiece, and then left. ('.

- 664- -8).

3t. ernc as2ed athleen to write a statement about the event. %he did so,

omittin# any mention of the 2nife. ;fter the lieutenant directed her to write about the

2nife, athleen complied, but then scratched it out. ('. -69 4-690).

/n $une *, + *, athleen visited her internist,


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pains, family history of diabetes and hi#h cholesterol, and heart murmur. ('. -9 ). ;t

one point Dr. =otiani believed athleen had fibromyal#ia. ('. -9-).

In %eptember + *, athleen rented the basement of her home to ristin

;nderson:s family. Three wee2s went by when athleen told ;nderson that Drew had

attac2ed her with a 2nife in $uly + +. athleen came off to ;nderson as 5security

conscious,5 sleepin# with a 2nife under her bed. (!o 2nife was found anywhere when the

police searched at the time of her death ('. 0 66). ;nderson also 2new athleen loc2ed

the doors to * + Pheasant &hase fre"uently. ('. 6 - 4- *).

In /ctober + *, athleen and Drew a#reed to a bifurcated divorce proceedin#,whereby the bonds of their marria#e were dissolved, but the marital estate was not

distributed. %hortly thereafter, Drew married %tacy. ('. - ). 1ecause they were

divorced before she died, athleen>s death had no effect on the property distribution. 69

I3&% 9?9 *, et. se". ('. 6 6).

=ary %ue Par2s testified that near Than2s#ivin#, + *, athleen showed her

three red mar2s on the middle of her nec2. ('. - - ). athleen said Drew had snuc2 in to

her home, #rabbed her by the nec2, pinned her down, and said, 5why don:t you just die.5

athleen also told Par2s that Drew told her 5he could 2ill her and ma2e her disappear.5

('. - -64- --7 - 6). Par2s offered to ta2e athleen and her children in, but athleen

declined. ('. - - ). /n cross, Par2s conceded she could not have been with athleen

when Par2s claimed athleen alle#edly made these statements. ('. -09 ).

@hen ;nderson was as2ed about this same event she insisted either she or her

husband would have been home for the event Par2s claimed was described, but they did

not recall witnessin# any such event. ('. - * 4 - 8*).

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;round the same time, Drew as2ed $effrey Pachter on a ride alon# in Drew:s

s"uad car. ('. 8). The ride alon# started with small tal2, but then Drew as2ed whether

Pachter could help 5ta2e care5 of Drew:s wife. ('. 6). Drew offered Pachter

A+9, . in eBchan#e for his help 2illin# athleen. ('. 60). Pachter did not inform

law enforcement authorities about the incident because he 5did not ma2e much of it.5 ('.

87 6 8). Drew did not follow4up. (Id.).

In $anuary + 8, athleen visited her sister, ;nna Doman (5;nna5). ('. 6* 8 4

69 6). athleen told ;nna that Drew snuc2 into her home and told her he would 2ill her

before he let her touch his pension. athleen repeatedly as2ed ;nna to 5ta2e care of herboys5 if somethin# ever happened to athleen. ;nna said she would. Cet when athleen

died, ;nna made no effort to care for her children. (Id). !or did she tell anyone about any

threats. @hen as2ed about a briefcase of athleen>s important papers that would prove

Drew>s culpability, ;nna admitted she put it on a shelf in her #ara#e and let it sit for three

years after athleen>s death, unopened, before #ivin# it to the state police in + 6. !o

evidence was introduced from the briefcase at trial. ('. 6* 87 69 6).

/n ebruary +6, + 8, athleen and her boyfriend, %teve =aniaci, went to the

%amba 'oom in !aperville with another couple. ('. -+-8). ;fter dinner the couples went

to a bar named the 3antern in !aperville. (Id.). 1oth consumed alcohol before #oin# to

athleen:s and havin# seB on their 2nees in the livin# room. ('. -+-94-+- 7 -+ ). That

evenin# =aniaci had turned down %avin>s marria#e overtures.

The neBt day, =aniaci and athleen went to %tea2 n: %ha2e in 1olin#broo2, Il. ('.

-+ 6). The two parted ways with soft plans to meet later. ('. -* ). =aniaci then went to

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band practice. They spo2e by phone at E p.m. and a#ain around midni#ht. ('. -* 04

-* +).

That afternoon athleen bumped into her neBt door nei#hbors, the Pontarellis,

outside of her home. (=ary Pontarelli was athleen>s best friend). ('. 0 +-6F0 * ).

They invited athleen to a family party, but she declined. ('. ). !either =aniaci nor

the Pontarellis had contact with athleen on %unday or =onday. ('. -* 84-* ).

athleen>s children did not have contact with her either, as they were with Drew for his

re#ularly scheduled visitation wee2end. ('. 0 - 6F0 -+ ).

/n =onday, =arch 0, + 8, fearin# somethin# amiss, Drew called the Pontarellis,as2in# them to accompany him inside athleen>s home. ('. 6 9+). Drew, who no lon#er

had access, obtained a loc2smith:s services and, accompanied by the Pontarelli family and

nei#hbor %teve &arcerano, #ained entry. ('. +9). ;round 0 E* p.m., &arcerano and

=ary Pontarelli discovered athleen:s body in the master bathtub. ('. ). @hen Drew

saw athleen he 2nelt over and chec2ed her pulse. %he was dead. ('. 6 9-). ; visibly

disturbed Drew contemplated what he would tell his children and summoned authorities.

('. 6 9-46 ). @hen "uestioned by =aniaci, Drew denied wron#doin#. ('. -*0*).

Drew went home to tell his sons, Thomas and ristopher, about their mother. ('. 0 -++).

Thomas observed Drew to be really upset by athleen>s death. ('. 0 - 6F0 -+ ).

;t approBimately 00E08 p.m., @ill &ounty Deputy &oroner =ichael


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I%P Gvidence Technician 1ob Deel arrived on scene at approBimately 0E* a.m.

('. 69+6). /n arrival Deel canvassed * + Pheasant &hase:s eBterior with I%P Troopers

1ryan alat and Patric2 &ollins. They noted nothin# suspicious or out of the ordinary. ('.

69 6). Deel found no physical evidence of wron#4doin# inside athleen>s home. ('.

6 8). There were no si#ns of disturbance, stru##le, or defensive wounds on athleen.

('. 6-6 46+7 6 9). Deel concluded athleen had slipped and fell in the tub. ('. 6 7

6 -+).

To#ether,


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/n =onday mornin#, and continuin# throu#h the day, Drew tried to reach

athleen. %he did not respond. ;t 6E p.m. Drew a#ain brou#ht the children, but

athleen still did not answer. Drew spo2e with =ary Pontarelli before leavin#. He

returned with the loc2smith who helped Drew and the Pontarellis to enter. ('.6-0846-++).

/n =arch +, + 8, 1ryan =itchell, =.D., who passed away before trial,

conducted athleen:s autopsy. ;fter the autopsy, Dr. =itchell opined athleen:s death

was not a homicide. ('.6 66). He found no major si#ns of trauma on athleen:s body.

('.--8*). Dr. =itchell:s report concluded athleen accidentally drowned. (People:s GB.

- )./n =arch *, + 8, Troopers &ollins and alat interviewed %tacy. Drew sat in on

the interview to support a 5nervous and sha2en5 %tacy. ('.6-+946-*+). %tacy offered no

information that inculpated Drew in athleen:s death. (Id.).

/n =arch 8, + 8, ToBicolo#ist &hristopher 3on#:s assistants ran lab tests on

tissue samples ta2en from athleen:s body. ('.-99 ). The tissue samples contained

indicators for sertraline and norsertraline ( oloft), caffeine, and methadone (opiates).

('.-9 84-9 ). The tests 3on# ordered could not identify whether athleen:s tissue

samples contained traces of 3ipitor, &elebreB, or herbal fat reduction pills. ('.-9 67

- 9).

In early =ay + 8, the @ill &ounty &oroner conducted an in"uest with evidence

presented to determine athleen:s manner of death. ('.-8*-). The coroner:s jury ruled

athleen:s death accidental. /ld 'epublic Insurance, who also investi#ated, paid a life

insurance claim for the benefit of athleen>s sons after in"uiry. ('.0 **8). I%P

investi#ators &ollins and alat formally summariJed the case and provided their wor2 to

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the @ill &ounty %tate:s ;ttorney:s /ffice. The Prosecutor did not file criminal char#es.

('.6-8 ). !o one "uestioned the decision.

Three years passed when, on ;u#ust * , + 6, %tacy called 'everend !eil %chori.

The two arran#ed to meet the neBt day at a &aribou &offee in 1olin#broo2, I3.

('.0 +). @hen they met, %tacy appeared nervous, physically withdrawn, and in tears.

('.0 8). %tacy told %chori about an evenin# when she and Drew went to sleep to#ether,

but she wo2e up in the middle of the ni#ht and Drew was #one. ('.0 9). %tacy

unsuccessfully chec2ed the house for Drew. 3ater, in the early mornin# hours, %tacy saw

Drew dressed in all blac2 standin# by the washer and dryer. ('.0 ). Drew had a duffleba# in his hand, and emptied the contents in to the washin# machine. %tacy identified the

contents of the ba# as women:s clothin# that she did not own. (Id.).

;ccordin# to %chori, Drew told %tacy what to say to the police. ('.0 6.). %tacy

told %chori she lied on Drew:s behalf when spea2in# with police. ('.0 -).

Durin# the same conversation %tacy told %chori Drew had, 52illed all his men5 in

the ;rmy (Drew was an =P at the @hite House ('. 00 - )).). ('.0 0940 0 ). The

whole conversation lasted about an hour and a half. %chori believed %tacy may have been

lyin#. ('.0 +97 0 + ).

Two months later, on /ctober +8, + 6, %tacy called ;ttorney Harry %mith.

('.0 669). %he wanted to retain %mith as a divorce attorney. ('.0 69 ). %tacy told %mith

she had information about Drew. ('.0 6 +). %he wanted to 2now whether accusations of

Drew:s involvement in athleen:s demise could be used a#ainst Drew in a divorce

proceedin#. ('.0 66+). In essence, %mith believed %tacy sou#ht economic #ain from her

accusations. ('.0 66 ).

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%everal days after %tacy contacted %mith, her sister &assandra &ales reported

%tacy missin#. ('. +0 F hearsay hearin#, not testified to at trial).

Drew sou#ht le#al counsel and in !ovember + 6 and retained $oel 1rods2y to

represent him. ('.00990). 1rods2y did not advise Drew to remain silent. Instead, 1rods2y

encoura#ed a first4of4its:42ind joint4publicity a#reement for the two parties. (&. 0+-9).

;fter si#nin# the a#reement, 1rods2y advised a slew of public appearances. 0 ('.00869).

He repeatedly told his partner, 'eem /deh, that he believed the case would benefit their

law firm financially. ('.009 ). ;t one point 1rods2y even attempted the sale of Drew:s

family foota#e for A+ , . . ('.9* 0).@ill &ounty convened a special #rand jury to investi#ate %tacy:s disappearance

and athleen:s death. The &oroner:s /ffice contacted Dr. 3arry 1lum, =.D., to review

Dr. =itchell:s autopsy report on athleen. ('.--*6). /n !ovember 0*, + 6, Dr. 1lum

proceeded with a second autopsy when athleen was eBhumed. There was 5a lot of water

in the cas2et ... and mar2ed deterioration of the tissues of K athleen:sL body5. ('.-- +4

-- *).

Dr. 1lum too2 M4'ays that were 5lar#ely unremar2able5. ('.- 8). He noted deep

bruisin# over the left lower "uadrant of athleen:s body. ('.-- 94-- ). Dr. 1lum also

noted bruisin# on the left breast. ('.- 00). He found no evidence of hemorrha#e in

athleen:s nec2 or bac2. ('.--6*). Dr. 1lum reviewed Dr. 3on#:s toBicolo#y report and

concluded athleen had no dru#s in her system at the time of death. ('.--66). 1ased on

the entirety of his findin#s, Dr. 1lum eventually ruled athleen:s manner of death

homicide. ('.- - 4- -6). Drew was indicted a year and a half later. (&.+).

0 &lips from t he media interviews were used as substantive evidence a#ainst Drewdurin# the %tate:s case4in4chief. ('. 99 +7 '. 0 06 7 &. 0 9)

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1etween $anuary 0 , + 0 , and ebruary 0 , + 0 , the &ourt held a hearin# (5the

hearsay hearin#5) pursuant to the %tate:s =otion to ;dmit &ertain Hearsay %tatements in

accordance with 6+9 I3&% 9?00940 . and the &ommon 3aw Doctrine of orfeiture by

@ron#doin#. (&. -6 7 'P *40 ). The %tate had the burden of provin#, by a preponderance

of the evidenceE (0) that Drew murdered athleen and %tacy and the murders were

intended to cause their unavailability as witnesses7 (+) that the time, content, and

circumstances of the statements provide sufficient safe#uards of reliability7 and (*) that

the interests of justice would best be served by admission of the statement into evidence.

;t the hearin#, the %tate called Thomas =orphey as its 5star witness.5 =orpheytestified he helped Drew move a blue barrel that he believed held %tacy:s remains.

('. - ). /n cross, =orphey admitted he had been a re#ular alcoholic and narcotic user.

('. 0 +). @alter =artinec2 testified =orphey was common and fre"uent liar with

substance abuse problems. ('. 8969489 ). The %tate also called Pastor !eil %chori and

;ttorney Harry %mith. %chori:s testimony tended to show %tacy was unhappy with Drew

and she believed Drew had a hand in athleen:s death. ('. 0 **4060 7 '. ++-64+*6 ).

%mith:s testimony tended to show %tacy was considerin# a divorce from Drew. ('. *- 4

8 ++) &andace ;i2en ('. 06-940-+-) and %haron 1ychows2i ('. 0+ 04080-) testified

%tacy loved her children. The %tate did not produce physical, forensic, occurrence, or

confession evidence showin# a person murdered %tacy.

The &ourt ruledE 0) Drew murdered athleen and %tacy7 +) did so to preclude

them from testifyin# a#ainst him at 5proceedin#s75 and, *) that the interests of justice

would be served by admittin# certain hearsay statements from athleen and %tacy at

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Drew:s murder trial. (;. *48).The %tate appealed this and several other pre4trial rulin#s.

(&. 690).

Npon remand, the defense moved to bar ;ttorney %mith:s testimony. (&. 0 ++).

%mith had testified before the special #rand jury and durin# the hearsay hearin#. The

defense ar#ued %mith:s prior testimony violated athleen and %tacy:s attorney4client

privile#e ri#hts. The trial court a#reed %tacy had not waived confidentiality in

communications with %mith. ('. 99 *F996+). It further ruled that, absent a clear waiver

of the privile#e, the attorney must assert the privile#e when as2ed to testify in a le#al

proceedin#. (Id.);t trial the %tate called more than thirty witnesses. They testified to hearsay ('.

0 ** F 0 67 6* 8 F 68+97 -* * F -8*67 ), two prior bad acts. ('. - 6- F -0 7 - 69 F

-699) and medical propositions ('. --*+ F - --7 889 F 99 7 0 -6- F 0 +0). The

defense called witnesses who impeached the %tate>s prior bad act evidence ('. 0 * F

0 8+), family who professed Drew>s innocence ('. 0 - 6 F 0 -*8), and Harry %mith.

;fter as2in# the court what the word 5unanimous5 meant ('. 0088 ), the jury returned a

#uilty verdict on %eptember , + 0+. (&. 0+9 ).

Post4trial, 1rods2y withdrew from representin# Drew. ('. 008 +). 1rods2y:s

conduct became a focal point of a post4trial motion filed by Drew:s new defense team.

(&.0+66).

;t an evidentiary hearin# Drew called 'eem /deh, 1rods2y:s former partner. %he

verified the media contract eBecuted between 1rods2y, Drew, and %eli# =ultimedia. (&.

0+-9). /deh testified that 1rods2y threatened her outside of the courthouse prior to her

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testimony in the evidentiary hearin#. ('. 0099 ). 1rods2y had physically attac2ed her

when she discovered the contract. ('. 009 *).

;ttorney 1rods2y testified he received monies from ;1& which he converted to

fees. ('. 00 0 4 00 *6).

$ohn =arshall 3aw %chool Professor &lifford %cott 'udnic2 testified as an eBpert

on ethics. 'udnic2 opined that 1rods2y:s eBecution of the a#reements 5raised ethical

concerns,5 and were violations of Illinois: 'ules of Professional 'esponsibility 0.6 and

0.-. ('. 0096 7 009-+). 'udnic2 opined that 1rods2y:s contracts #ave rise to a per se

conflict of interest. ('. 009-8). 'udnic2 eBplained It raises ethical problems in a coupleways. @hat I see is the ethical dilemma and as reason for the rule is that when the lawyer

is in a position of his or herself from not bein# con#ruent with that of the clientOthen the

value of the anticipated money mi#ht #o down that you mi#ht not act or an attorney

mi#ht not act in what mi#ht be the best interest of the client. ('. 0096-).

'etired $ud#e Daniel 3ocallo li2ewise opined 1rods2y:s contracts violated Illinois

'ule of Professional &onduct 0.- (b). ('. at 00 9). $ud#e 3ocallo had also reviewed

much of the trial record. He opined the decision to call ;ttorney %mith was 5not

reasonable trial strate#y5. ('. 00 68). He more fully opinedE

The jury had already heard testimony from, I believe (Pastor %chori) about =r.Peterson comin# home in blac2 clothin#. Np until that point there had not been any directevidence with respect to =r. Peterson causin# the demise of =s. %avio.

@hile the &ourt denied Drew:s post4trial motion from the bench, it made the

followin# observations about 1rods2yE

It was clear to the court from the very be#innin# that =r. 1rods2y was out of hisdepth. It was clear to me from the very be#innin# he didn:t possess the lawyerly s2illsthat were necessary to underta2e this matter on his own ... =r. 1rods2y was clearly at a

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different spectrum of lawyerly s2ills than the other attorneys that were in this case. ('.at 00-**).

Drew was sentenced to *- years in prison. (&. 08 0).

/utside of the sentencin#, 1rods2y spo2e to the media, revealin# alle#edly

privile#ed information about Drew:s case. &ounsel brou#ht forth a motion as2in# that the

&ourt impose a #a# order on 1rods2y. (&. 080 ). @hile it declined to ta2e such measures

the &ourt a#ain directly addressed 1rods2y:s conductE

In *6 years almost now of bein# a prosecutor, an attorney in private practice, anda jud#e, I:ve never seen an attorney comport himself in the fashion that =r. 1rods2y didof #oin# on television and willin#ly spea2in# about his conversations with his client ...the client:s impressions about why witness KsicL were called, threats that were made,innuendo about the affect of a client:s testimony on a trial, thin#s of that nature.

;nd I can:t 4 I wish I could thin2 of a word beyond shoc2ed that I could apply to=r. 1rods2y:s appearance on television in this case. I thin2 it ma2es the comments that Imade in the rulin# on the post4trial motion about his abilities even more ma#nified. ('.00 +*).

The &ourt referred the matter to the ;'D&. (&. 0899). Drew filed a timely notice

of appeal. (&. 089*).

AR8U9ENT

I. DRE AS DENIED A FAIR TRIAL HEN ATTORNE@ HARR@S9ITH TESTIFIED A6OUT A PRI ILE8ED CON ERSATION ITHSTAC@ THAT HAD 6EEN RULED INAD9ISSI6LE, AND ASHEARSA@ OPINION INSINUATIN8 DRE AS 8UILT@ OF 9URDER.

A. A%%#"*e S$'%& *e e" / &a e %e/%'!'e /'*(e, a/ %&e %"'a (# "% &e , %&e'/( //'#* a/ p"#%e(%e 4 a%%#"*e -( 'e*% p"' ' e e.

%hortly before leavin#, %tacy phoned ;ttorney Harry %mith to re"uest his

representation when she filed for divorce from Drew. The attorney4client privile#e attached

and was permanent. Exline v. Exline, 277 Ill. App. 3d 10 (2 nd Dist. 1995) . Durin# that

consultation %tacy said she had 2nowled#e Drew had 2illed athleen and 2new how. %he

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in"uired if her awareness would be beneficial in a divorce. %mith thou#ht Drew heard this

conversation. ('.0 69 40 66 ).

;ttorney %mith first discussed his consultation with the state police in /ctober + 6

and made it public durin# a radio appearance on the 'oe and 'oeper %how on @3% ;=.

httpE??www.youtube.com?watch vQ#Pf3nvio2iw ). He testified under oath about the

conversation on at least five separate occasions. '. * 9*4987 99 *4996+7 0 690). %mith

i#nored any thou#ht of attorney4client privile#e. @hen as2ed ;ttorney %mith, couldn>t

KyetL #au#e whether his choices have been #ood for business. ('. 96* ).

;bsent compulsion, %mith never should have spo2en to the police or testified. Hewas well aware of this ethical obli#ation ('. 96 -) (%mith testifyin# only the client can

waive the privile#e). &ounsel was re"uired to refuse to spea2.

In this re#ard, the prosecutor i#nored that he is the representative of all parties.

People v. Coc !"n, 313 Ill. 50#, 52$ (192%) (The %tate>s attorney in his official capacity is

the representative of all the people, includin# the defendant, and it was as much his duty to

safe#uard the constitutional ri#hts of the defendant as those of any other citiJen.). 'ee "lso

&nited 't"tes v. o n*, %70 &.'. 1 (19#5) . ;ccordin#ly, The prosecutor has a duty to

0 Presented at the hearsay hearin#, this was 2ey testimony %tacy 2new anythin#about athleen>s death, or that Drew 2new %tacy claimed she had information.;ccordin#ly it was the principle testimony to inferentially support any claim Drew feared%tacy mi#ht someday tal2. =inus %mith the court certainly could not have foundforfeiture . ('. * 9*7 99 *).

0 The attorney must assert the privile#e Thus, only the client may waive thisprivile#e. In eG 8"!!i"*e o= Dec e! , at *0*. ;ccordin#ly, it is immaterial that anattorney called as a witness is willin# to disclose privile#e communications. In eG

Est"te o= sse , 332 Ill App. 25#, 2$$, 75 -.E. 2d 3$ (2 nd Dist. 19%7) . %ee Illinois 'ule ofProfessional &onduct ;rticle


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ensure defendant receives a fair trial. Defense counsel:s failure to properly object does not

alleviate that duty (citations omitted). People v. +" lo!, 2%% Ill.App.3d #0$, #19, $12

-.E.2d 9%3, 952 (1993) . The prosecutor never should have presented privile#e testimony,

nor should they have discoura#ed the court from addressin# the issue at the hearsay

hearin#.

The court li2ewise had a responsibility to ensure the communication was not shared.

Illinois 'ule of Gvidence 0 8 (preliminary "uestions concernin#Othe eBistence of a

privile#eOshall be determined by the court). Npon the trial jud#e rests the duty of seein#

that the trial is conducted with solicitude for the essential ri#hts of the accused. l"sse! v.

0 ;n objection at the hearsay hearin# was overruled. ('. *- 7 * 9+). 1ut beforetrial the court reversed, a#reein# the conversation was privile#ed. ('. 99 * F 996+).

/nce the court held the consultation was privile#ed, the prosecutor respected therulin#, did not appeal, and did not call %mith.

The attorney4client privile#e is an Sevidentiary privile#eO> Ct!. P"!tne!s, /td.v. !oBt @e"d P, //C, 2012 I/ 113107, 9#1 -.E.2d 3%5, 355 . ;s an evidentiaryprivile#e the defendant has standin#. %ee for eBample P"! inson v. Cent!"l D P"*e

@ospit"l, 105 Ill App 3d #50 (1 st . Dist. 19#2) (Hospital had standin# to raise non4partyphysician4patient privile#e)7 cf &nited 't"tes v. : ite, 7%3 .2d %##, %9% (7t Ci!. 19#%)(The overnment, however, cannot appeal based upon the inade"uate protection ofsomeone else:s privile#e. In so sayin#, we are not unmindful of the duty of every lawyerto brin# to the attention of the trial court possible ethical problems in the case7 nor do wefind fault with the overnment for havin# done so in this case.) Thus, at a minimum,Drew had standin# to brin# the issue before the court, who before trial correctly held thatprivile#e applied. Drew>s "uarrel on appeal is both with the overrulin# earlier objectionand with ;ttorney %mith>s failure to obey the court>s rulin#, and the court>s failureenforce its> own rulin#. Nnder the uni"ue facts of this case defendant has standin# onappeal, #iven it is at this point an evidentiary issue,as well as the court>s failure to applyits> correct rulin#. urther, #iven the prosecutions and counsel>s failure to respect theprivile#e, and #iven %tacy was not present, Drew was, and is, the only one who can ur#ethe court to follow the law. In e Adoption o= "; i!l /ed;ette!, 125 Ill.App.3d. 30$(%t Dist. 19#%)(&ourt has duty to enforce principle of law s e sponte when it is brou#htto its> attention. To find standin# wantin# would ma2e the actions of %mith, theprosecutor, and the &ourt immune from review.

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&nited 't"tes, 315 &.'. $0, 71, $2 '. Ct. %57, %$5, #$ /. Ed. $#0 (19%2) , superceded by

statue on other #rounds. o ! "il v. &nited 't"tes, %#3 &.'. 171, 179 (19#7) .

;t trial, havin# correctly held %tacy:s conversation with %mith was privile#ed the

court barred the prosecution from presentin# it. Cet when the defense called %mith, the

issue of privile#e was ineBplicably abandoned. The rulin# necessarily had to apply to

both sides. The court should not have allowed the defense to call ;ttorney %mith. If the

consultation was privile#ed, it was privile#ed. Gnd of story.

&ertainly, the idea of not allowin# either side to call a particular witness for a

myriad of reasons is not novel, it happens all the time. =oreover, here the court 2new thewitness was #oin# to devastate the defense. That provided a secondary basis F the court

2new it was le#al suicide to call %mith.

The harm cannot be mar#inaliJed. %mith never should have testified at the

hearsay hearin#. His eBplosive testimony was essential to the findin# Drew had a reason

to ma2e %tacy unavailable. He never should have testified at trial. The consultation was

ruled inadmissible on the basis of privile#e. The court should not have blithely stepped

aside simply because the defense wanted to call the witness. Privile#e is not party

dependent. The trial court ou#ht to have enforced its> order, rather than allow defense

counsel to commit malpractice.

6. D"e "e(e' e '*e!!e(%' e "ep"e/e*%a%'#* &e* (# */e , !#" *#* e"/%a* a4 e p "p#/e, (a e A%%#"*e S$'%& a/ a '%*e// /# %&a% &e (#

%e %&e " %&a% S%a( &a '*!#"$a%'#* a4# % D"e ' e ;a%& ee*,%&a% D"e % &% S%a( a/ %e '* pe#p e &e ' e ;a%& ee*, a* %&aD"e a/ a '"% (#p.

; person char#ed with a crime has the ri#ht to eBpect his lawyer:s "uestions toprosecution witnesses will not help the %tate prove its accusationO S or defense counselto elicit testimony which proves a critical element of the %tate:s case where the %tate has

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not done so upsets the balance between defense and prosecution so that defendant:s trialis rendered unfairO> "c son, 31# Ill.App.3d "t 32#, 7%1 -.E.2d 102$ . Defensecounsel:s repeated and mis#uided efforts to elicit dama#in# testimony not introduced bythe %tateOresulted in an unfair trial for the defendant. People v. 4!t", 3$1 Ill.App.3d

3%2, 3%3, #3$ -.E.2d #11, #13 (1 st Dist. 2005) .

If this statement holds true, what of the defense attorney who elicits from his own

witness testimony to prove the accusation Testimony the trial jud#e said was the most

incriminatin# evidence in the case. ('.0009 ). Uuite lo#ically, counsel is ineffective.

It was a disaster to call ;ttorney %mith. He be#an with she K%tacyL wanted to leave

the state with the children and she had information re#ardin# athleen Peterson she

wanted to use. ' 0 6 +. Then it #ot worse. IneBplicably, defense counsel neBt as2ed %mith

whether he had previously testified, under oathE

That %tacy had as2ed 5 could we #et more money out of Drew if we threatened to tell thepolice about how he 2illed athy. (' 0 66+)7

5That she K%tacyL had so much s4h4i4t on him KDrewLat the police department that he couldn:tdo anythin# to her. (' 0 66*468)7

5K%tacyL as2ed me if we could #et more money out of Drew if we tell the police how he

2illed athy. (' 0 669)7 and, 5%he said she wanted to say he 2illed athy . (' 0 666).

The prosecutors capitaliJed on this horrific #affe, "uic2ly reinforcin# the dama#in#

parts from the privile#ed conversation, and addin# others E

That %tacy said Drew was furious with her because he thou#ht she had told his son that hehad 2illed athleen7

That Drew was conductin# surveillance on her or followin# her7

That she had too much shit on him for him to do anythin# to her7

That she wanted to 2now if she could #et more money out of Drew if she threatened to tellthe police about how he 2illed athy7

0 The entire eBamination is included in the ;ppendiB.

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U. %he specifically used the word 5how:: in describin#, not just thefact that he 2illed athy, but how he 2illed athy.

;. Ces.

That Drew was callin# to %tacy from another room and O ;s2ed her what she was doin#and who she was tal2in# to, I believe.

(' 0 6 40 6 6).

&ontinuin# the dama#e, on redirect %mith told the jurors he cautioned %tacy to be

careful because she could be arrested for concealment of a homicide, testimony the court

reco#niJed O adds credibility to her statement because he>s sayin# I believe that it really

happened so I was cautionin# her don>t conceal a homicide, not don>t conceal her death,

don>t conceal a homicideO (' 0 - * and ' 0000+).

There was no sound strate#y for callin# this witness. Defense counsel presented to

the jury what th e prosecution could not4a witness to say Drew 2illed athy, embedded in

their conscience without a sin#le actual fact bein# testified to. &ounsel 2new that %mith

would testify %tacy told him she 2new Drew 2illed athleen, and how. He had time and

a#ain durin# earlier warnin#s. ('. * 9*4987 0- 7 8 ++7 ).

=oreover, %mith never told the jurors how %tacy 2new Drew 2illed athleen7 that

she saw Drew 2ill athleen7 or any fact as to how he 2illed athleen. To be sure, %tacy

never would have been able to testify, Drew 2illed athy and I 2now how and then

disembar2. Plainly, absent facts, foundation, and 2nowled#e the statements were wholly

0 %ee Drew Peterson Defense @itness called S ift rom od> by Prosecutor. 5It:s a#ift from od,5 %tate:s ;ttorney $ames las#ow was overheard sayin# O after %mithfinished testifyin#, and 51rods2y just wal2ed bac2ward over a cliff with Drew Petersonin his arms,5 said athleen ellnerO 4 ( httpE??articles.chica#otribune.com?+ 0+4 -4* ?news?ct4met4drew4peterson4trial4 -* 4+ 0+ -* V0Vstacy4peterson4bolin#broo24bathtub4peterson4attorney4joel4brods2y )

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inadmissible. Illinois 'ule of Gvidence + .

Gvery criminal defendant is #uaranteed the ri#ht to effective assistance of

competent counsel. 8c8"nn v. ic "!dson, 397 &.'. 759, 771 (1970)H 't!ic l"nd v.

:"s in*ton, %$$ &.'. $$#, $#7 (19#%)H People v. Al;"nese, 10% Ill.2d 50%, 525


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In People v. '"l*"do, 200 Ill.App. 3d 550 (1 st Dist. 1990) , defense counsel was held

to be ineffective for elicitin# defendant:s admission while defendant testifiedE

@e perceive no lo#ical reason for counsel to have called defendant as a witness

and elicited a confession on direct eBaminationO 1y pleadin# not #uilty, defendant wasentitled to have the issue of his #uilt or innocence of residential bur#lary presented to thecourt as an adversarial issue. Defense counsel:s conduct in this case amounted toineffective assistance of counsel because it nullified the adversarial "uality of thisfundamental issue. People v. '"l*"do, 200 Ill.App.3d 550, 553, 55# -.E. 2d 271, 27%(1990) .

3i2ewise, in People v. "ines, 399 Ill. App.3d ##1 (2010) , the court reversed when

counsel was clumsy and confusin# , in addition to brin#in# forth an admissionE

However, the record in this case is replete with eBamples of unusual behavior bydefense counsel. It was at this juncture that defense counsel elicited from the defendant adamnin# admission. Nnder "uestionin# by defense counsel, the defendant admitted thatalthou#h he had earlier told the police that he did not 2now @ilson, his alle#edaccomplice in the crime, in fact he 2new @ilson S"uite well.> This evidence is clearlyharmful to the defendant. ;nd, a review of the record reveals that the #ravity of the harmcaused by this evidence was lost on defense counsel, as he continued to "uestion his ownclient in a manner which bolstered the %tate:s case. at ---4-- .

The affirmative solicitation of dama#in# testimony is obviously an unsound

strate#y. In addition, 'ee People v. P illips, 227 Ill.App.3d 5#1, 590, 592 -.E.2d 233, 239

(1 st Dist. 1992) (ineffective counsel elicited hearsay statements about defendant:s

connection to the crime on trial and others )7 People v. 8oo!e, 35$ Ill.App.3d 117, 127,

#2% -.E.2d 11$2, 1170ond, 339 Ill .

App.3d 51, $5 ?$$, 790 -.E. 2d %1$, %2# ( 1 st Dist. 2003) (5%oundtrial strate#y embraces

the use of established rules of evidence and procedures to avoid, when possible, the

admission of incriminatin# statements, harmful opinion and prejudicial facts.) 7 People v.

"ile , 37% Ill. App.3d $0#, $1%?15 (1 st Dist. 2007) (defense counsel elicited testimony

that harmed the defendant:s case when he brou#ht forth evidence that the defendant had

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been spea2in# to potential narcotics purchasers)7 and People v. De 'i>one 9 Ill.2d 522,

13# -.E.2d 55$ (195$) (Ineffective where counsel introduced evidence that his clients

were evil men and hardened criminals who had committed numerous bur#laries

previously).

In the instant case, counsel introduced the incriminatin# words about how he

KDrewL 2illed athy7 that %tacy wanted to #o to the police and tell how Peterson 2illed

athy7 that Peterson thou#ht she had told Tom (his and athy>s son) he 2illed athy and

that %tacy had so much shit on Peterson for bein# a bad cop, implyin# dishonesty and

awful character, as well as a bad man. /n cross4eBamination, the %tate was able to reinforcethe dama#e, stressin# that Drew was an#ry at %tacy for tal2in# to Tom (lo#ic dictates that he

would not be an#ry unless the statement were true)7 that Drew was conductin# ille#al

surveillance on %tacy7 and, repeatedly, that she wanted to tell the police how Drew 2illed

athy. ;nd finally, on re4direct, defense counsel brou#ht out that %mith cautioned %tacy to

be careful #iven her involvement in a homicide. ;s cited above, individual instances of

similar testimony have supported findin# counsel ineffective. Here, we have a buffet with

courses from all the cases.

Presentin# a statement of #uilt is counter4intuitive. The defense offerin# a witness to

state they 2now how the defendant committed the murder is tantamount to admittin# #uilt,

that nullified the adversarial "ualityO '"l*"do "t 553 .

The harm was so eBtreme that the court opined 5I will say that it:s unusual that the

%tate responds that the information of how he 2illed her came from the very last witness

called by the defendant in the case.5 ' 0009 . Plainly ineffective.

II. DRE S PRINCIPAL ATTORNE@, 6@ SI8NIN8 A 9EDIA RI8HTSCONTRACT HEN RETAINED, CREATED A PER SE CONFLICT.

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KTLhe "uestion of whether a pe! se conflict eBists is a le#al "uestion we review

de novo . People v. @e!n"nde , 231 Ill. 2d 13%, 1%% (Ill. 200#) .

@hen %tacy disappeared, all eyes turned toward Drew. @hile he may havereveled in his role as a suspect at first, he was a layperson with no formal trainin# as a

counselor or attorney. Nnfortunately, at this most crucial moment Drew hired a lawyer

who 5did not possess the lawyerly s2ills necessary to underta2e the investi#ation at

hand. ('. 00-**) 'ather than advisin# silence 4 somethin# any attorney would feel

professionally and morally obli#ated to do 4 ;ttorney 1rods2y ac"uired a financial

interest in his client:s cause, advisin# him to address the matter throu#h a media blitJ

1rods2y benefitted from. 0

&ounsel sat idly by while media outlet after media outlet as2ed his client

"uestions that were 5accusatorial in nature5 and had desi#ns of elicitin# incriminatin#

information. ('.9 *). @hy In a manner of months, 1rods2y went from obscure to

sou#ht after. 0

0 The ri#ht to be heard would be, in many cases, of little avail if it did notcomprehend the ri#ht to be heard by counsel. Gven the intelli#ent and educated laymanhas small and sometimes no s2ill in the science of law. If char#ed with crime, he isincapable, #enerally, of determinin# for himself whether the indictment is #ood or bad.He is unfamiliar with the rules of evidence. 3eft without the aid of counsel he may be puton trial without a proper char#e, and convicted upon incompetent evidence, or evidenceirrelevant to the issue or otherwise inadmissible. He lac2s both the s2ill and 2nowled#eade"uately to prepare his defense, even thou#h he have a perfect one. He re"uires the#uidin# hand of counsel at every step in the proceedin#s a#ainst him. @ithout it, thou#hhe be not #uilty, he faces the dan#er of conviction because he does not 2now how toestablish his innocence.

ideon v. :"inB!i* t, 372 &.'. 335, 3%%?3%5 (19$3) .

0 'epresentin# Drew Peterson F landin# bi# name clients a watershedmomentO httpE??articles.chica#otribune.com?+ -4 0409?news? - 008 - V0Vdru#4cases4lawyers4drew4peterson . !onetheless, #iven the pe! se conflict why does not matter.

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rom the outset, ;ttorney 1rods2y entered into a business transaction and

ac"uired literary ri#hts connected with his client>s cause thereby creatin# an

irreconcilable conflict of interest with his client (contract). (&. 0+-9). To benefit he

encoura#ed and participated in a whirlwind media tour defendin# his client a#ainst

char#es that had not materialiJed, marvelin# even the prosecutor.

The media covera#e, I don>t 2now that there has before ever been a case with

more media covera#e, and it>s all been orchestrated by defense counsel and the defendant

himself. ('. 0 ). 0

It was in December + 6, when ;ttorney 1rods2y and Drew entered into acontract with %eli# =ultimedia, Inc. f?s?o lenn %eli# (%eli#) .0 The a#reement called

for %eli# to provide publicity and promotional services for Drew and?or 1rods2y. (&.

0+-9 F 0+ ). or any appearance 1rods2y was entitled to up to ei#hty4five (-9) percent

of the revenues. (He offered a news outlet an eBclusive for A+ , .

(-9WQA069, . )). ('. 9* 0). He received compensated hotel stays, meals, and spa

treatments for he and his wife while representin# Drew. (&.0+ 9). 1rods2y received cash

and other material benefits from the interviews. ('. 00 0 400 *6).

0 &lips from the campai#n were used a#ainst Drew durin# the %tate>s case4in4chief.('. 0 06 40 066). The trial court noted that the majority of the interviews wereaccusatory in nature and conducted with an eye towards provin# Drew>s #uilt, as2in#rhetorically what lawyer would do this ('. 9 * F 9 8 ).

0 ;lthou#h the contract was not re4si#ned, %eli# continued to represent 1rods2y(httpE??thepublicitya#ency.com?drew4peterson4defense4team4online4media42it? ), throu#hthe trial, even appearin# on T< with 1rods2y on oB!ews discussin# earnin#opportunities from the case. httpE??www.youtube.com?watch vQoJpaa i14i-

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in @ashin#ton, the reason for havin# a pe! se rule prohibitin# representation by an

attorney with possible conflictin# interests is that certain associations may have

subliminal effects on counsel:s performance which are difficult to detect and

demonstrate. :"s in*ton, 101 Ill.2d "t 110. 'ee "lso 'p!eit e!, 123 Ill.2d "t 1$, 525

-.E.2d 30H People v. D"l , 3%1 Ill.App.3d 372, 37$, 792 -.E.2d %%$ (% t Dist. 2003) (the

per se conflict rule is desi#ned to (0) avoid unfairness to the defendant, who may not be

able to determine whether his representation was affected by the conflictO).

;ccordin#ly, if a pe! se conflict is established, the defendant need not show that the

conflict affected the attorney:s actual performance in order to secure a reversal of hisconviction. +" lo!, 237 Ill.2d "t 37%


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Thereafter, 'ule 0.- was enacted to clarify. 0 Professor 'udnic2 eBplained,comment Kto rule 0.-L says an a#reement by which a lawyer ac"uires literary or mediari#hts concernin# the conduct of the representation creates a conflict between the interestsof the client and the personal interest of the lawyer. =easures suitable in representation ofa client may distract from the publication value of an account of the representation. ('.009-+).

The contract provided 1rods2y with an incentive to ma2e the case as enticin# as

possible, not as le#ally and tactically sound as feasible (perhaps eBplainin# why %mith

was called F to 2eep the 094minutes4of4fame #oin#). Thus, the mere eBistence of the

contract between the client and attorney in this case created a pe! se conflict that re"uires

no further showin# of prejudice. ('. 009-04009-8).

It is not simply the rules violations. &ounsel sou#ht to profit financially from the

sensationalism of this case. In Illinois, pe! se conflicts also arise when there is financial

tension. In People v. 'tov"l , the defense attorney and his firm had previously represented

the victim business. %0 Ill 2d 109 (19$#) . The &ourt held that, in li#ht of this previous

relationship with the victim of the robbery, there was si#nificant ris2 that the attorney

would not advocate for his client with sufficient vi#or. ;lthou#h there is no showin#

that the attorney did not conduct the defense of the accused with dili#ence . . . sound

policy disfavors the representation of an accused . . . by an attorney with possible conflict

of interests. Id. ;t bottom, KtLhe assistance of counsel means assistance which entitles

an accused to the undivided loyalty of his counsel and which prohibits the attorney from .

0 /ur %upreme &ourt obviously finds this conduct deeply disturbin#. ;ttorneyHerbert Hill en#a#ed in misconduct by violatin# 'ules 0.-(b) and -.8(a)(0) of the Illinois

'ules of Professional &onduct in "tte>ptin* to ac"uire a media ri#hts assi#nment durin#the course of his representation of his clients. Holdin# the conduct to be unprofessionaland in violation of the 'ule the attorney was suspended from practicin# law. In t e

8"tte! o= @e!;e!t @ill , -o. 8. . 12575, (199$) 7 'ee "lso :in le! v. Fe"ne, 7 .3d 30%(2d Ci!. 1993) (contin#ency arran#ement between counsel and criminal defendant #averise to pe! se conflict of interest).

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. . underta2in# the dischar#e of inconsistent obli#ations. %ee also People v. Coslet, $7

Ill. 2d 127 (Ill. 1977) (attorney cannot represent defendant and also represent victim>s

estate). cf People v. "n s 121 Ill.2d 3$ (19#7) (Public defender:s offices, we have

reco#niJed, are unli2e private law firms for purposes of conflicts of interest).

In this case, there were many conflicts. &ounsel saw this case as a promotional

tool, and eBploited it for professional and financial #ain. The more sensational the case,

the more publicity for 1rods2y. His self4interest completely clouded his jud#ment, to the

detriment of the client.

III. THE TRIAL COURT ERRED AS A 9ATTER OF LA IN AD9ITTIN8PASTOR SCHORI S TESTI9ON@, 6OTH AT THE FORFEITURE 6@

RON8DOIN8 HEARIN8 AND AT TRIAL, IN CONTRA ENTION OFTHE CLER8@ PRI ILE8E DOCTRINE.

The lower court>s evidentiary rulin#s are subject to an abuse of discretion

standard on review. People v. :illi">s, 1## Ill. 2d 3$5, 3$9, 721 -.E.2d 539, 5%2

(1999) . !evertheless, review will be de novo KwLhere a trial court:s eBercise of

discretion has been frustrated by an erroneous rule of law.... Id. at 98+.

The court below made two separate rulin#s rejectin# =r. Peterson>s challen#e to

the testimony of Pastor %chori. The court determined at the pretrial hearsay hearin# that

the privile#e did not apply to counselin# in a public place. ;fter the trial, when that was

shown to be incorrect, the court newly asserted that the counselin# itself did not merit the

privile#e. Gach rulin# misapprehends basic tenets of privile#e law.

A. Re '"e$e*% %&a% %&e (# */e '* 4e '* a p"' a%e p a(e

;s a matter of law, the trial court erred by addin# a new element to cler#y4

parishioner privile#e F that the communication to be privile#ed must ta2e place in a

private place. ;lthou#h the conversation must be private, the locale F whether a par2,

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library, or coffee shop F need not be. Hence, Pastor %chori>s statements should have

been eBcluded because they were privile#ed.

Nnder Illinois law, cler#y members or spiritual advisors cannot testify about a O

confession or admission made to him or her in his or her professional character or as a

spiritual advisor in the course of the discipline enjoined by the rules or practices of such

reli#ious body or of the reli#ion which he or she professesO 6*9 Ill. &omp. %tat. ;nn.

9?-4- * (@est). 0 The trial court below initially a#reed that %tacy Peterson enjoyed an

eBpectation of confidentiality in the counselin# session, that Pastor %chori was actin# as

her spiritual advisor and that he had always pled#ed confidentiality in the course ofcounselin# sessions. ('. 0 6+). !onetheless, the court held that the conversations were

not privile#ed because they too2 place at &aribou, a public placeE K&Laribou &offee is

not a place where you can eBpect to have privile#e of this nature because it>s in a public

settin#. ('. 0 -0). In holdin# that conversations in public places are not protected by

privile#e, the trial court #rafted a re"uirement onto the statute that simply does not eBist.

0 The party assertin# privile#e must prove that all of the elements of the privile#eeBist before the court can eBclude the testimony. People v. Die!c s , ## Ill. App. 3d 1073,1077 (19#0) . Here, the court before the trial ac2nowled#ed the eBistence of all of theelements in this case eBcept the element of confidentiality. Privile#e belon#s to both thespiritual advisor and parishioner, so if the spiritual advisor willin#ly testifies, thedefendant must prove that the rules of practice of the relevant reli#ion forbids disclosure.

People v. Die!c s , ## Ill. App. 3d 1073, 1077, %11 -.E.2d 97, 101 (19#0) . Pastor %chori

testified that he was the counselin# pastor at @estbroo2 &hristian &hurch in + 6 durin#the time that %tacy attended the church, and %tacy sou#ht Pastor %chori as a maritalcounselor. The Pastor further testified that there were not any written precepts for him tofollow. Thus, as the pioneerin# pastor, he established the practices and developed hisown precedent for the rules of his counselin# sessions. His rules for counselin# included2eepin# strict confidence in all of his sessions and conductin# all of his counselin# atpublic places in order to avoid any "uestion of impropriety on his part. ('. 0 9 F060*).

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The 2ey "uestion in any privile#e case, whether arisin# out of a physician4patient,

attorney4client, or cler#y4penitent relationship, is whether the parties intended the

communication to be confidential. ;s this &ourt has stated, the privile#e eBtends only

to admissions or confessions made in confidence. People v. C">po;ello, 3%# Ill. App.

3d $19, $3$ (3 !d Dist. 200%) . The place of the communication has never been talismanic

F all the statute re"uires is that the parties intend the communication to be confidentialE

; plain readin# of the Illinois statutes reveals a desi#n to protect those communications

between cler#yman and laymen that ori#inate in a confidence. 'n de! v. Poplett, 9#

Ill.App.3d 359, 3$2 (19#1) (protectin# communication in a hospital).Pastor %chori testified that he was the counselin# pastor at @estbroo2 &hristian

&hurch in + 6 durin# the time that %tacy attended the church, and that Drew and %tacy

sou#ht him as a spiritual counselor, principally about issues relatin# to their marria#e.

The Pastor further testified that there were not any written precepts for him to follow. ('.

0 9 F0 +). Thus, as the pioneerin# pastor, he established the practices and developed

his own precedent for the rules of his counselin# sessions. His rules for counselin#

included 2eepin# strict confidence in all of his sessions and conductin# all of his

counselin# at public places in order to avoid any "uestion of impropriety on his part.

(Id.) He specified that the session with =s. Peterson at &aribou>s was no different. The

trial court>s decision that privile#e was lost because somebody could have overheard

the conversation cannot be s"uared with &ampobello and %nyder. ('. 0 -0).

To be sure, the chance that a third party could overhear an otherwise confidential

conversation is #reater in some locales than others. Cet Pastor %chori>s practice of havin#

his counselin# session in public did not undermine the private nature of the counselin#

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because he reco#niJed a need for privacy in such a settin# and too2 measures to ensure

privacy. He and %tacy purposely sat away in a corner, with Pastor %chori ma2in# sure

that nobody, includin# the third party he brou#ht alon#, was within hearin# distance of

the discussion. ('. 0 9 F0 +).

;lthou#h Illinois courts have held that the privile#e may be lost if a third party

who is not essential to the communication overhears it, they have never held that the

privile#e is lost if a third party is merely in eyeshot. or instance, in People v. Die!c s,

## Ill.App.3d 1073 (Ill App. 19#0) , defendant>s confession of a bur#lary to a reverend was

admitted into evidence because the reverend was accompanied by the defendant>slandlord durin# the discussions. The court did not focus on the place of the confession,

but rather on the fact that the landlord>s presence undercut any notion that the

communication KwasL made in confidence. Id. at 0 6-. =oreover, the court in Die!c s

also held that the reverend>s discussions with the defendant in the jail cellbloc2 were

privile#ed, even thou#h presumably there were others nearby.

In other jurisdictions as well, confessions that parishioners made in the vicinity of

third parties have been held to be privile#ed as lon# as no one overhears the conversation

In 't"te v. 4!=i, 511 -.:.2d %$% (8inn. Ct. App. 199%) , defendant, who was convicted of

murderin# his #irlfriend>s son, ar#ued that the trial court erred when it allowed a priest to

testify about a discussion between the defendant and the priest in a hospital reception

room, which was open to the public. Id. at 8 -. Indeed, much as in this case, the

prosecution ar#ued that the privile#e was lost because an un2nown individual entered the

reception room at one point. The court rejected that ar#ument because there was no

evidence that the individual, or anyone else, overheard the conversation. Id. at 86 .

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%imilarly, in :"s in*ton v. 8"!tin, 959 P.2d 152 (:"s . App. 199#), "==6d 975 P.2d 1020

(1999) , the court considered whether a conversation between defendant and a pastor

could "ualify for the privile#e #iven that defendant>s mother and evidently others were

present in the apartment when the discussions too2 place. The court held that, even

thou#h other individuals were present durin# those instances for at least part of the

time, as lon# as the particular conversations in "uestion were outside the presence of

others, Id. at 09 , the privile#e should attach. The 2ey in both cases was whether the

parties intended the communication to remain confidential, irrespective of the venue. %ee

also 'c B"!t v. :en*e!, 12% -.:.2d %#9, %92 (19$3) , (holdin# that conversations inpublic places defeated attorney4client privile#e only if the conversation is in fact

overheard by a party usin# non4surreptitious means)7 i!"ldo v. D! >>ond Co., 2012

&.', Dist /E I' 53759 (-.D. Al".) (focusin# on steps the parties too2 to maintain

privile#e as opposed to the fact that meetin#s between attorneys and clients too2 place in

semi4public locales).

It is similar to spousal privile#e, reco#niJin# the same basic premise of

confidentiality. Nnder spousal privile#e, the courts reco#niJe that communication made

in the presence and hearin# of a third person are #enerally not considered to be

confidential. People v. 8 !p , 2%1 Ill. App. 3d 91#, 92%, $09 -.E.2d 755, 7$0 (1992) .

There, the defendant>s wife testified that the defendant and another man 2nown as 1oo

came into the defendant>s home, and the defendant told his wife in front of 1oo that he

thou#ht he 2illed someone. Id. 1efore the defendant spo2e further, he and his wife

stepped into the 2itchen where he told her the circumstances of the 2illin#. Id at +0. The

appellate court held that the defendant>s admission made in the presence and hearin# of

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1oo was not confidential, but the wife>s testimony about the communication that too2

place in the 2itchen should not have come into evidence because it was intended to be

confidential. Id at +9.

In short, this &ourt should reverse the trial court>s admission of Pastor %chori>s

testimony. Pastor %chori and %tacy plainly intended their conversation to be confidential,

and the court never found to the contrary. =oreover, the court never found that anyone at

&aribou overheard the conversation.

6. T&e /(#pe #! %&e ( e" p"' ' e e

@hen =r. Peterson renewed his privile#e challen#e after trial, the court did anabout face, this time rulin# that the privile#e did not apply because the marital counselin#

did not fall within the scope of the cler#y privile#e. The court reasoned first that

counselin# by cler#y relatin# to marria#e does not merit the privile#e because such

discussions do not reflect unburdenin# Kone>sL soul ('.00-+-400-+ ), and second that

the privile#e does not attach because the church had no formaliJed process by which a

person unburdens their soul Ksic.L such as in the 'oman &atholic church. Id. !either

#round is tenable.

&ounselin# by cler#y with respect to issues arisin# in marria#e does not fall

outside the privile#e. 'ather, the discussions with cler#y must be made to him or her in

his or her professional character or as a spiritual advisor. 6*9 III. &omp. %tat. ;nn. 9?-4

- *. There is no "uestion but that Pastor %chori throu#hout acted in his capacity as

spiritual advisor, as he testified at len#th. ('. 0 ** F 0 6). Indeed, issues arisin# in

marria#e fre"uently touch on issues of faith, #uilt, for#iveness, and reli#ious

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commitment. It is not the reason for the conversation that renders it privile#ed. %uch a

test would be far too subjective to be wor2able.

!ot surprisin#ly, courts have found marital counselin# to fall within the cler#y

privile#e. 0 In 4!e*on v. Cox, 7%2 P. 2d $9% (4!e. 19#7) , for eBample, the court reversed

a conviction based upon the trial court>s holdin# that the privile#e did not attach to

marital counselin#. The court reasoned that at the time when defendant confessed, he

2new that 1ec2 was a cler#yman and re#arded him, and reasonably could re#ard him, as

actin# in his professional character7 he intended his communication to 1ec2 to be

confidential7 and he 2new that 1ec2 had eBpressed a willin#ness to hear thecommunication in confidence and his professional character as a member of the cler#y.

Id. at 4 6. %ee also4 io v. 8"son, 2011 4 io App. /E I' 27$7 ( ne 30, 2011)

(rejectin# %tate>s interlocutory appeal challen#in# applicability of cler#y privile#e arisin#

out of marital counselin#)7 In !e !"nd ! Investi*"tion, 91# .2d 37% (3d Ci!. 1990)

(reco#niJin# that privile#e may eBist for 3utheran cler#yman en#a#ed in family

counselin#). The Illinois statute plainly covers Pastor %chori>s counselin# sessions

re#ardin# the sanctity of marria#e.

The court post4trial also rejected privile#e because Pastor %chori>s church had no

formaliJed process such as the confessional for hearin# the innermost secrets of

con#re#ants. There is absolutely no support in lo#ic or the #overnin# Illinois statute for

the court>s distinction. &ler#y from new reli#ions as well as old "ualify for the privile#e,

0 Illinois courts have not decided the issue s"uarely, but the court, in &ampobellosummariJed that, to fall under the protection Kof the statuteL, a communication must bean admission or confession (0) made for the purpose of receivin# spiritual counsel orconsolation (+) to a cler#y member, whose reli#ion re"uires him to receive admissions orconfessions for the purpose of providin# spiritual counsel or consolation. *8- III. ;pp.*d at *9.

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and rules for the counselin# process need not be inscribed. 'ather, Illinois> statute

re"uires merely that the counselin# be with a spiritual advisor in the course of the

discipline enjoyed by the rules or practices of such reli#ious body or of the reli#ion which

he or she professesO ;s the trial court ori#inally ruled in this case, Pastor %chori was

actin# within his church>s tenets by en#a#in# in counselin# and by pled#in#

confidentiality. ('. 0 9 40 +). !o #reater formaliJed process is re"uired and,

accordin#ly, the trial court>s rejection of privile#e must be overturned. Indeed, in

@ashin#ton v. =artin, supra, the court held that cler#y of the Gvan#elical 'eformed

&hurch could claim the privile#e because, KaLs many states have properly reco#niJed,the cler#y member privile#e should be liberally interpreted to include more than just

those reli#ions with formaliJed systems of confession. Id. at +- n.*.

Pastor %chori>s testimony un"uestionably was prejudicial. His testimony was

critical in convincin# the court to admit other hearsay statements pursuant to the

forfeiture by wron#in# doctrine and then in placin# before the jury the defendant>s

purported #uilt. /nly the counselin# session with Pastor %chori could plausibly place the

defendant at the scene of athleen %avio>s death, contradictin# defendant>s alibi. The

impact of the testimony cannot be #ainsaid. Testimony about those counselin# sessions

violated privile#e, predicated the court>s forfeiture by wron#doin# determination, misled

the jury, and deprived defendant of a fair trial.

I . THE TRIAL COURT ERRED IN AD9ITTIN8 INTO E IDENCE, IATHE FORFEITURE 6@ RON8DOIN8 DOCTRINE, HEARSA@STATE9ENTS THAT THE COURT HAD PRE IOUSL@ FOUNDUNRELIA6LE.

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To determine the admissibility of hearsay statements under the forfeiture by

wron#doin# doctrine, the trial court must assess whether the prosecution established by a

preponderance of the evidence that the defendant caused a potential declarant to be

unavailable as a witness at a le#al proceedin#. People v. @"nson, 23# Ill.2d 7%, 97?99

(2010)H 725 I/C' 5 115?10.$ (;) . ;s discussed, when an appellate court analyJes a trial

court>s decision to allow or eBclude evidence, the court will review the determination

under an abuse of discretion standard of review, In !e D.+. 212 Ill.2d 3%7, 35$ (200%) , but

accord no deference to le#al determinations. People v. :illi">s, 1## Ill. 2d 3$5, 3$9

(1999) .In this case, the circuit court both erred as a matter of law in interpretin# the

re"uirements of the forfeiture by wron#doin# proceedin# and abused its discretion in

findin# that the prosecution sufficiently proved that Drew Peterson 2illed both athleen

and %tacy with the intent of ma2in# them unavailable to testify at specified le#al

proceedin#s. Therefore, the trial court erred in admittin#, pursuant to the forfeiture by

wron#doin# doctrine, hearsay statements that became the lynchpin of the prosecution>s

case, deprivin# Drew of a fair trial .0

The %upreme &ourt of the Nnited %tates made it clear in iles v. C"li=o!ni" that

the forfeiture by wron#doin# doctrine only applies when the defendant desi#ned to

0 Two of the ei#ht statements F athleen %avio>s statement to /fficer ernc andathleen %avio>s letter to the @ill &ounty %tate>s ;ttorney>s /ffice 44 were testimonial

and thus their introduction tri##ers ri#hts under the %iBth ;mendment>s &onfrontation&lause. iles v.C"li=o!ni", 55% &.'. 353 (200#) . The analysis as to admissibility,however, for those two statements is similar as for the other siB that the trial courtori#inally determined to be unreliable #iven that the forfeiture by wron#doin# doctrinearticulated by the Illinois %upreme &ourt in @"nson serves both as an eBception to thehearsay rule and to eBtin#uish confrontation clause claims. 23# Ill.2d "t 97 . In bothconteBts, the specific intent to ma2e a person unavailable as a witness, must bedemonstrated. Id.at .

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of a divorce, the forfeiture by wron#doin# doctrine would not apply unless the defendant

2illed his spouse to prevent specific testimony. The court below merely stated that the

murder was intended to cause the unavailability of the declarant, athleen %avio, as a

witness.

The trial court>s unadorned conclusion omitted any mention whatsoever of the

testimony that defendant purportedly wished to avoid. The prosecution never even

proffered what athleen would have testified to that was of such #reat salience. 0 That

omission compels the conclusion that the trial court abused its discretion in findin# that

Drew 2illed athleen with the intent to 2eep her from testifyin# at the divorceproceedin#s.

'ecently, the District &ourt for the Gastern District of @isconsin in $ensen v.

%chwochert, !o. 004&4- * (Dec. 0-, + 0*), #ranted a habeas petition on that precise

#round in a remar2ably similar case. The prosecution had ar#ued that the defendant had

murdered his wife to avoid her testimony in a divorce proceedin#, particularly in order to

obtain child custody. The court responded persuasively that if defendant caused $ulie>s

death as the %tate alle#ed, he did so not to prevent her from testifyin# at a divorce but to

eliminate any need for a divorceOThis is not the 2ind of specific intent that iles

re"uires in order to invo2e the forfeiture by wron#doin# eBception. %lip op. 0 . The

$ensen court thus stressed that, absent a clear showin# of the testimony purportedly

feared by defendant, the forfeiture by wron#doin# doctrine did not apply.

0 The prosecution offered an eBpert, disallowed by the trial court and this court,who alle#edly was to testify that the divorce jud#e was li2ely to adhere to his pre4trialrecommendations, even if a trial occurred, meanin# any testimony was meanin#less. (&.-* 7 '. 6 -).

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inally, the prosecution i#nores that, even if Drew 2illed athleen to prevent

testimony at the divorce proceedin#, that intent cannot be transferred to permit

introduction of hearsay statements in an unconnected proceedin#. Defendants>

wron#doin# may forfeit their ri#ht to challen#e hearsay in the proceedin# they were

tryin# to avoid, but there is no reason that even such wron#doin# should preclude

challen#es to hearsay in unrelated taB, license, or criminal proceedin#s. !o other

wron#doers are treated in such fashion. Indeed, in a closely analo#ous case, the court in

&nited 't"tes v. /ent , 2#2 . ' pp. 2d 399 (E.D. " 2002), "==6d, 5# ed. Appx 9$1 (% t

Ci!. 2003) , stated that, even if defendant had 2illed the victim to prevent her testimony ata divorce case, the divorce proceedin# is not the proceedin# that will be before the

courtO. KThe victimL would not be testifyin# in this case if she were available. Id. at

8+ 4+6. 'ee "lso &nited 't"tes v. o!d"n, 2005 &.'. Dist. /exis 32#9 (D. Colo. 2005)

(similarly holdin# that forfeiture by wron#doin# does not prevent challen#es to hearsay

statements in proceedin#s unrelated to that for which victim was silenced). cf. :isconsin

v. ensen, 79% -.:.2d %#2, %93 (:isc. 2010) (declinin# prosecution>s theory that forfeited

confrontation ri#hts apply to unrelated proceedin#s), habeas #ranted on other #rounds. It

is a2in to a but for analysis F but for the unavailability would they testify. Plainly,

athleen would not purposely be made unavailable to be a witness at a murder trial for

her death. 3o#ically, forfeiture cannot apply. ;ccordin#ly, in li#ht of the prosecution>s

failure to demonstrate that =r. Peterson 2illed athleen with the intent to preclude her

testimony, the forfeiture by wron#doin# findin# must be reversed.

6. T&e p"#/e( %'#* ' *#% p"# e 4 a p"ep#* e"a*(e #! %&e e ' e*(e %&a%D"e Pe%e"/#* ' e S%a( Pe%e"/#* '%& %&e '*%e*% #! $a '* &e"

*a a' a4 e a/ a '%*e// !#" a e a p"#(ee '* .

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1. T&e"e a/ '*/ !!'('e*% e ' e*(e %&a% e!e* a*% a/ "e/p#*/'4 e !#"S%a( Pe%e"/#* / '/appea"a*(e.

The prosecution submitted little direct evidence Drew was responsible for %tacy>s

disappearance, let alone that he 2illed her with the intent to preclude her testimony.

Durin# the pre4trial hearin#, the prosecution asserted that %tacy Peterson was dead. ('.

8690). They presented documents, includin# credit card records, phone call and teBtin#

records, trac2in# of the last time her passport was used, and her last filin# of taBes. Id.

=oreover, prosecutors eBplained that people who should have had contact with %tacy

had not since /ctober +-th. ('. 869+49 ). /ther alle#ed means of proof that %tacy is dead

included that she loved her 2ids, (Id.), that she was loo2in# forward to Halloween, (Id.),

that she had paintin# plans the day she disappeared, (Id.), that her personal effects were

not missin#, (Id.), and finally, that she had career aspirations. (Id.). !one of this proves

by a preponderance of the evidence that %tacy is dead.

The details listed are all facts that could very well be present in re#ards to any

missin# person>s case. In fact, %tacy>s own mother, &hristie, has been missin# since=arch of 0 -. &hristie also loved her children, had a strained relationship with her

husband, and presumably has #enerated no phone call, taB, or passport records of use

followin# her disappearance. 0 The lac2 of traceable activity by %tacy demonstrates that

she is missin#, but to #o further and conclude that she is dead is not sufficiently

supported by evidence.

Gven assumin#, ar#uendo, she is unavailable in this case the prosecution, in the

absence of tan#ible evidence, relied principally on motive. 1ut references to a difficult

0 &hristie =arie &ales !orth ;merican =issin# Persons !etwor2, citin# &harleyProject, ;u#ust + 0+. ('. +08-4+06-).

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marital relationship, %tacy>s apparent unhappiness, and Drew>s alle#ed jealousy cannot

supply proof sufficient to justify a findin# that it was Drew who was responsible for

%tacy>s disappearance. (In reviewin# this &ourt should not consider the improperly

admitted testimony from %mith and %hori).

+. I*%e*% %# p"e e*% %e/%'$#* a% a ! % "e p"#(ee '* .

;t the time of %tacy>s disappearance, athleen %avio>s death was classified as

an accident, and had lon# been closed. !o investi#ation was underway at the time. Id.

There simply was no realistic prospect she would be a witness. or sure, as far as

everyone, includin# Drew, was concerned, athleen>s death was a tra#ic accident. ;s the

N.%. %upreme &ourt su##ested in iles , the lac2 of evidence of on#oin# criminal

proceedin#s of which the victim would have been eBpected to testify, undermines the

forfeiture by wron#doin# claim. 55% &.'. "t 377 .

Thus, even if the prosecution proved by a preponderance of the evidence that

Drew made %tacy unavailable, as a matter of law there was insufficient evidence that the

death was lin2ed to a specific intent to prevent %tacy from testifyin# at a proceedin# that

was, at that point, non4eBistent. ;#ain, assumin# that Drew 2illed %tacy, the prosecution

motives of jealousy, financial #ain, or even cruelty are insufficient to tri##er the

testimonial forfeiture by wron#doin# doctrine. %ee also In !e ol"ndis ., 232 Ill.2d 13,

%3 (200#) (rejectin# forfeiture by wron#doin# claim because no indication that assault

was motivated in any way by desire to prevent Kthe victimL from bein# a witness a#ainst

him at trial). There must be a neBus between the alle#ed 2illin# and a specific

proceedin# at which the victim would be a witness. Thus the trial court>s decision with

respect to %tacy>s hearsay statements must be reversed.

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inally, even if the theoretical prospect of a future murder proceedin# at the time

of %tacy>s disappearance was not too remote, the only evidence even su##estin# a motive

to "uell future testimony was raised by %tacy>s divorce attorney, Harry %mith.

;s the court later a#reed, the privile#e applied. ('. 99 *7 '. 6*80). %ee Issue I,

infra. The trial court>s earlier error infected the pretrial hearin#, leadin# the court to

conclude that Drew was responsible for %tacy>s unavailability as a witness. 0 The court>s

refusal to bloc2 that testimony at the pretrial hearin# constitutes reversible error, and

leaves the prosecution with no reco#niJable evidence that Drew wished to ma2e %tacy

unavailable to testify at a murder proceedin#, that at the time, was ima#inary.0

0 Drew, after the court reversed and correctly held %mith could not testify, as2ed thecourt to reconsider the forfeiture rulin#. The court refused. (&. +). '. 99 *).

0 ;lthou#h defendant is loath to re4ar#ue an issue raised and lost in this &ourtpreviously, this &ourt>s earlier decision that the common law as opposed to statute shouldapply and therefore that the hearsay admitted under the forfeiture by wron#doin# doctrineneed not be reliable misstates Illinois %upreme &ourt precedent. 9$# -.E.2d 20% (Ill.

App. 2012 ). @hile Illinois %upreme &ourt rules and decisions ta2e precedence over state

le#islation if they concern internal rules of house2eepin# or doc2et mana#ement, courtswill attempt to reconcile any conflict between state le#islation embodyin# a public policychoice and the court>s rules and decisions. People v. @al2er, 519 -.E.2d #90, #93 (Ill.19##) . /nly if the le#islation directly and irreconcilably conflicts with a %upreme&ourt rule will the rule ta2e precedence. Id. Drew>s 3aw is a permissible eBercise ofle#islative power reflectin# public policy to protect the ri#hts of defendants. Gven asearly as 0 8+, it was well settled Kby the supreme courtL that the le#islature of a %tatehas the power to prescribe new and alter eBistin# rules of evidence or to prescribemethods of proof. People v. :ells, 3#0 Ill. 3%7, 35%, %% -.E.2d 32 (19%2) . /ver thedecades, the Illinois le#islature has enacted many statutes affectin# rules of evidencewhich have been upheld. 'ee People v. ol=in*s>e e!, %$1 -.E.2d %10, %12 (Ill. 19#%)

(collectin# valid state le#islation coverin# admissibility of business records, coroner:srecords, rape victims> prior seBual conduct, and defendant:s payment of plaintiff:s medicaleBpenses)7 @oe> v. i", 239 Ill.App.3d $01, $11?$12 (1992) (commentin# on valid statele#islation coverin# admissibility of evidence, includin# witness competency, prioridentifications, prior inconsistent statements). 1ecause the state statute re"uirin# findin#sof reliability does not intrude into the judiciary>s province, no separation of powersviolation would arise and the ei#ht hearsay statements found unreliable by the trial courtshould have been eBcluded.

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C. E e* '! %&e (#$$#* a !#"!e'% "e 4 "#* #'* #(%"'*e app 'e/, %&ee p"#(e// ( a /e #pe"a%e/ a/ a* '* epe* e*% (&e( #* a $'//'#* #!

&ea"/a /%a%e$e*%/.

;t trial, =r. Peterson ar#ued that the ei#ht hearsay statements were so unreliable

as to violate his ri#hts to Due Process. ('. 6 + 46 6 ). The court below reco#niJed the

salience of the Due Process claim and held a hearin# on whether the statements could be

admitted consistent with Due Process even thou#h the prior trial court jud#e had found

that their introduction would defeat the interests of justice. The court ultimately

adopted an eBtremely narrow test for determinin# whether introduction of the statements

would violate Due Process, namely that the statements must be facially unreliable. ('.

6 8 46-). To the court, the hearsay statements had to seem unreliable without reference

to the time and circumstances in which they were made before they could be eBcluded.

Nnder that facially unreliable standard, the court ruled that there was no Due Process

violation.

The court erred as a matter of law in adoptin# the facial unreliability standard.

The Due Process issue cannot be cabined so neatly F statements may violate Due Process

for reasons other than unreliability F most importantly, if there is not sufficient

corroboration, it would be a violation of Due Process to permit a conviction based on

hearsay alone.

; findin# based on a preponderance of the evidence that a defendant made a

potential witness unavailable for trial has never been held to forfeit all of his or her

constitutional ri#hts. Defendant retains the ri#ht to a jury trial, ri#ht to counsel, ri#ht to

cross4eBamination of other witnesses, etc. /therwise, the trial would become a moc2ery.

Indeed, if the jud#e>s decision as to culpability under the forfeiture by wron#doin#

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doctrine itself ineBorably led to a conviction, then the jud#e in essence would be

underminin# a defendant>s ri#ht to jury factfindin# as #uaranteed under the App!endi v.

-eB e!se , 530 &.'. %$$ (2000) , line of decisions.

The notion that jud#es may strip the defendant of a ri#ht that the &onstitution

deems essential to a fair trial, on the basis of a prior dici"l assessment that the

defendant is #uilty as char#ed, does not sit well with the ri#ht to trial by jury. iles ,at

* 9.

Thus, even thou#h application of the forfeiture by wron#doin# doctrine can result

in admission of unreliable hearsay evidence, when introduction of that evidencefundamentally distorts the fact4findin# process, the Due Process &lause re"uires its

eBclusion. The doctrine cannot be used to violate those fundamental conceptions of

justice which lie at the base of our civil and political institutions, and which define the

community>s sense of fair play and decency. DoBlin* v. &nited 't"tes, %93 &.'. 3%2,

353 (1990). 'ee "lso +o>e v. &nited 't"tes, 513 &.'. 150 (1995) (orderin# new trial in

li#ht of erroneous admission of hearsay).

@hen there is corroboration, the introduction of hearsay, even if unreliable, does

not violate the &onstitution. 1ut, here, there was no corroboration of 2ey evidence, such

as =ary Par2, and particularly the statements to ;ttorney Harry %mith, which should

have been eBcluded in any event on privile#e #rounds. His testimony vividly invo2ed the

voice of %tacy to condemn defendant for athleen>s death. ;s discussed earlier, that

hearsay statement was fundamental to the prosecution>s case.

Indeed, the trial court jud#e relied on the Due Process &lause in refusin# to allow

another witness, %cott 'ossetto, to testify about hearsay statements. ;lthou#h the court

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called it a case of facial unreliability, his reasonin# belied that assertion for the court

eBcluded the proposed testimony under the Due Process &lause in li#ht of all surroundin#

circumstancesE !ow, ta2in# all of these thin#s into account and eBaminin# this from the

perspective a due process claim, the unreliability of this witness>s testimony, these

discovery violations, the misinformation #iven to the defendant, the information now that

the witness was put on the stand and allowed to testify to somethin# that was apparently

false. ('. +-04 *9+).

The court went beyond facial unreliability to consider an overall assessment of

fairness to the defendant F due process must be based on all the circumstances, even if amore demandin# test than reliability itself.

Drew>s Due Process challen#e should be #ranted. Introduction of those ei#ht

hearsay statements, previously found to be unreliable, deprived him of a fair trial because

there was no corroboration of 2ey alle#ations. 1asic fairness was lost. Those hearsay

statements constituted almost the entire case a#ainst defendant, which even the

prosecution ac2nowled#ed. In these unusual circumstances, the trial below should be set

aside as a violation of =r. Peterson>s ri#ht to

Documents

Drew Peterson: Murder conviction appeal