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3:13-0157 _______________________________________________________________________ _ IN THE APPELLATE 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 '*#'/ ) 0. ) I*,'(%$e*% N#.: 01 CF 1023 ) ) DRE- PETERSON, ) H#*#"a4 e E,5a", 6)"$' a, J". De!e*,a*%-Appe a*%. ) J),7e P"e/','*7 )


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




POINTS AND AUTHORITIES ????????????????..???.'-'0 NATURE OF THE CASE ?????????????????????....1 JURISDICTION ??????????????????????.??..?1 STATE9ENT OF FACTS ?????????????????.????.1-1+ AR8U9ENT I. DRE- -AS DENIED A FAIR TRIAL -HEN ATTORNE@ HARR@ S9ITH TESTIFIED A6OUT A PRI:ILE8ED CON:ERSATION -ITH STAC@ THAT HAD 6EEN RULED INAD9ISSI6LE, AND -AS HEARSA@ OPINION INSINUATIN8 DRE- -AS 8UILT@ OF 9URDER. ???????????????????????????????13








:I. DRE- -AS NOT PRO:ED 8UILT@ 6E@OND A REASONA6LE DOU6T ??????????????????????????????..23


CERTIFICATE OF CO9PLIANCE ?????????????????55

APPENDIB =U*,e" Sepa"a%e C#0e")



DRE- -AS DENIED A FAIR TRIAL -HEN ATTORNE@ HARR@ S9ITH TESTIFIED A6OUT A PRI:ILE8ED CON:ERSATION -ITH STAC@ THAT HAD 6EEN RULED INAD9ISSI6LE, AND -AS HEARSA@ OPINION INSINUATIN8 DRE- -AS 8UILT@ OF 9URDER. A. A%%#"*e. S$'%& *e0e" /&#) , &a0e %e/%'!'e, /'*(e, a/ %&e %"'a (#)"% &e ,, %&e ,'/()//'#* 5a/ p"#%e(%e, 4. a%%#"*e.-( 'e*% p"'0' e7e. Exline v. Exline, 277 Ill. App. 3d 10 (2nd Dist. 1995). 13 People v. Coc !"n, 313 Ill. 50#, 52$ (192%)... 1% &nited 't"tes v. (o)n*, %70 &.'. 1 (19#5).. 1% People v. +",lo!, 2%% Ill.App.3d #0$, #19, $12 -.E.2d 9%3, 952 (1993) ..1% .l"sse! v. &nited 't"tes, 315 &.'. $0, 71, $2 '. Ct. %57, %$5, #$ /. Ed. $#0 (19%2) 15 0o)!1"il, v. &nited 't"tes, %#3 &.'. 171, 179 (19#7)15 6. D"e5 "e(e'0e, '*e!!e(%'0e "ep"e/e*%a%'#* 5&e* (#)*/e , !#" *# )*,e"/%a*,a4 e p)"p#/e, (a e, A%%#"*e. S$'%& a/ a 5'%*e// /# %&a% &e (#) , %e %&e C)". %&a% S%a(. &a, '*!#"$a%'#* a4#)% &#5 D"e5 D' e, ;a%& ee*, %&a% D"e5 %&#)7&% S%a(. 5a/ %e '*7 pe#p e &e D' e, ;a%& ee*, a*, %&a% D"e5 5a/ a ,'"%. (#p. People v. 2"c3son, 31# Ill.App.3d 321, 7%1 -.E.2d 102$ (1st Dist., 2000). 1$ People v. 4!t", 3$1 Ill.App.3d 3%2, 3%3, #3$ -.E.2d #11, #13 .(1st Dist. 2005) ....1$ 5issse! v. P"c3e! En*6* Assocs. Inc., 92% 7. 2d $55,$59 (7t Ci!. 1991).....1# &nited 't"tes v. '"ntos, 201 7. 3d 953, 9$3 (7t Ci!. 2000).1# 8c8"nn v. 9ic "!dson, 397 &.'. 759, 771 (1970)..1# 't!ic3l"nd v. :"s in*ton, %$$ &.'. $$#, $#7 (19#%)1# People v. Al;"nese, 10% Ill.2d 50%, 525<2$, %73 -.E.2d 12%$, 1255<5$ (19#%)1# People v. 7letc e!, 335 Ill.App.3d %%7, %53, 7#0 -.E.2d 3$5, 370 (5t Dist. 2002)19 People v. /e=le!, 29% Ill.App.3d 305, 311, $#9 -.E.2d 1209, 121% (199#)...19 People v. '"l*"do, 200 Ill.App.3d 550, 553, 55# -.E. 2d 271, 27% (1990).19 People v. 0"ines, 399 Ill.App.3d ##1 (2010)....19 People v. P illips, 227 Ill.App.3d 5#1, 590, 592 -.E.2d 233, 239 (1st Dist. 1992) ...20 People v. 8oo!e, 35$ Ill.App.3d 117, 127, #2% -.E.2d 11$2, 1170<71 (1st Dist. 2005).....20 People v. 9ose>ond, 339 Ill. App.3d 51, $5?$$, 790 -.E. 2d %1$, %2# (1st Dist. 2003)20 People v. 0"ile,, 37% Ill.App.3d $0#, $1%?15 (1st Dist. 2007)..20


DRE-AS PRINCIPAL ATTORNE@, 6@ SI8NIN8 A 9EDIA RI8HTS CONTRACT -HEN RETAINED, CREATED A PER SE CONFLICT. People v. @e!n"ndeA, 231 Ill. 2d 13%, 1%% (Ill. 200#)...21 .ideon v. :"inB!i* t, 372 &.'. 335, 3%%?3%5 (19$3)..21 Illinois 9)les o= P!o=ession"l Cond)ct 9)les 1.7 "nd 1.# (2010)..23 Illinois v. A)stin 8., 2012 I/ 11119% C #1.23 People v. D"l,, 3%1 Ill.App.3d 372, 37$, 792 -.E.2d %%$ (%t Dist. 2003).23 +",lo!, 237 Ill.2d "t 37%<75, 930 -.E.2d 959..2% People v. ."c,, 125 Ill.2d 117, 135 (Ill. 19##).2% People v. 'tov"l, %0 Ill 2d 109 (19$#)25 9)les 1.#(;) "nd #.%(")(1) o= t e Illinois 9)les o= P!o=ession"l Cond)ct25 People v. Coslet, $7 Ill. 2d 127 (Ill. 1977)...25


T&e"e '/ *# "eE)'"e$e*% %&a% %&e (#)*/e '*7 4e '* a p"'0a%e p a(e

735 Ill. Co>p. 't"t. Ann. 5D#?#03 (:est) .27 People v. C">po;ello, 3%# Ill. App. 3d $19, $3$ (3!d Dist. 200%)..27 'n,de! v. Poplett, 9# Ill.App.3d 359, 3$2 (19#1)..27 People v. Die!c3s, ## Ill.App.3d 1073 (Ill App. 19#0)..29 't"te v. 4!=i, 511 -.:.2d %$% (8inn. Ct. App. 199%)...29 :"s in*ton v. 8"!tin, 959 P.2d 152 (:"s . App. 199#)....30 'c B"!tA v. :en*e!, 12% -.:.2d %#9, %92 (19$3) ..30 .i!"ldo v. D!)>>ond Co., 2012 &.', Dist /EEI' 53759 (-.D. Al".)..30 People v. 8)!p ,, 2%1 Ill. App. 3d 91#, 92%, $09 -.E.2d 755, 7$0 (1992)31

T&e /(#pe #! %&e ( e"7. p"'0' e7e '*( ),e/ $a"'%a (#)*/e '*7 4!e*on v. Cox, 7%2 P. 2d $9% (4!e. 19#7)...32 4 io v. 8"son, 2011 4 io App. /EEI' 27$7 (2)ne 30, 2011).32 In !e .!"nd 2)!, Investi*"tion, 91# 7.2d 37% (3d Ci!. 1990)..32


THE TRIAL COURT ERRED IN AD9ITTIN8 INTO E:IDENCE, :IA THE FORFEITURE 6@ -RON8DOIN8 DOCTRINE, HEARSA@ STATE9ENTS THAT THE COURT HAD PRE:IOUSL@ FOUND UNRELIA6LE. People v. @"nson, 23# Ill.2d 7%, 97?99 (2010).3% 725 I/C' 5D115?10.$ (;)...3% In !e D.+. 212 Ill.2d 3%7, 35$ (200%)..3% People v. :illi">s, 1## Ill. 2d 3$5, 3$9 (1999)3% .iles v. C"li=o!ni", 55% &.'. 353, 3$0 (200#)..3% T&e p"#/e()%'#* ,', *#% p"#0e 4. a p"ep#*,e"a*(e #! e0',e*(e %&a% D"e5 Pe%e"/#* D' e, ;a%& ee* Sa0'# 5'%& %&e '*%e*% #! $aD'*7 &e" )*a0a' a4 e a/ a 5'%*e// !#" a e7a p"#(ee,'*7.

In !e 8"!!i"*e o= D"vies, 95 Ill.2d %7%, %#1 (19#3)..35 In !e 8"!!i"*e o= 0l"c3, 155 Ill.App.3d 52, 5% (3!d Dist.19#7)35 2ensen v. 'c Boc e!t, -o. 11?C?#03 (Dec. 1#, 2013)....37 &nited 't"tes v. /entA, 2#2 7. ')pp. 2d 399 (E.D. 5" 2002)....3# :isconsin v. 2ensen, 79% -.:.2d %#2, %93 (:isc. 2010).39

T&e p"#/e()%'#* ,', *#% p"#0e 4. a p"ep#*,e"a*(e #! %&e e0',e*(e %&a% D"e5 Pe%e"/#* D' e, S%a(. Pe%e"/#* 5'%& %&e '*%e*% #! $aD'*7 &e" )*a0a' a4 e a/ a 5'%*e// !#" a e7a p"#(ee,'*7.

T&e"e 5a/ '*/)!!'('e*% e0',e*(e %&a% ,e!e*,a*% 5a/ "e/p#*/'4 e !#" S%a(. Pe%e"/#*A/ ,'/appea"a*(e. +. I*%e*% %# p"e0e*% %e/%'$#*. a% a !)%)"e p"#(ee,'*7. In !e 9ol"ndis .., 232 Ill.2d 13, %3 (200#)..%0

E0e* '! %&e (#$$#* a5 !#"!e'%)"e 4. 5"#*7,#'*7 ,#(%"'*e app 'e/, %&e ,)e p"#(e// ( a)/e #pe"a%e/ a/ a* '*,epe*,e*% (&e(D #* a,$'//'#* #! &ea"/a. /%a%e$e*%/. App!endi v. -eB 2e!se,, 530 &.'. %$$ (2000)...%3 DoBlin* v. &nited 't"tes, %93 &.'. 3%2, 353 (1990)...%3 +o>e v. &nited 't"tes, 513 &.'. 150 (1995)..%3


THE TRIAL COURT A6USED ITS DISCRETION IN AD9ITTIN8 JEFFRE@ PACHTERAS TESTI9ON@ 6ECAUSE THE STATE FAILED TO PRO:IDE PROPER NOTICE OF THE TESTI9ON@ UNDER RULE 202=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$ 7.3d 7$7, 77% (7t Ci!. 199%)%5 People v. 8"son, 219 Ill.App.3d 7$, #0 (%t Dist. 1991)%5 Ill. 9. Evid. %%(;).....%5 Ill. 9. Evid. %0%(c)...%5 People v. D";;s, 239 Ill.2d 277, 295 (2010).%5 &nited 't"tes v. 0lo)nt, 502 7.3d $7%, $77 (7t Ci!. 2007)..%$ &nited 't"tes v. C"!!"sco, 3#1 7.3d 1237, C.A.11 (7l".) 200% ...%$ &nited 't"tes v. '3ocAen, %05 7.3d 537, 5%# (7t 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. 9ive!", 9$2 -.E.2d 53, $5 (Ill. App. 2., 2011)...%9 People v. D" e,", 2013 :/ 597297#, (Ill. App. 1st Dist., 2013) ...%9 People v. 2ones, %0% Ill.App.3d. 73%, 750 (Ill. App. 1st Dist., 2010)..51

:II. THE CU9ULATI:E ERRORS DENIED DEFENDANT HIS RI8HT TO A FAIR TRIAL AND CAST DOU6T UPON THE INTE8RIT@ OF THIS PROCEEDIN8. People v. Fidd, 1%7 Ill.2d 510, 5%%<%5, 1$9, 591 -.E.2d %31, %%7 (1992).52 People v. +",lo!, 2%% Ill. App. 3d #0$, #19, $12 -.E.2d 9%3, 952 (1993)..52 People v. 'B"**i!t, 2#2 Ill.App.3d $92, 705, $$# -.E.2d $3% (199$).52 People v. 0l)e, 1#9 Ill. 2d 99, 137?39, 72% -.E.2d 920, 9%0?%1 (2000).53 People v. '>it , 1%1 Ill.2d %0, $7, 5$5 -.E.2d 900, 911 (1990).5%

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, <inod =otiani, =.D. ('. .-*+). athleen had seen Dr. =otiani since 0..+. %he re#ularly complained of bein# fati#ued, irritable, and depressed. ('. .-8(4.-86). Dr. =otiani noted athleen:s re#ular chest

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*).

;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 her boys5 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 Debruary +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


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 <an /ver arrived and eBamined athleen. <an /ver found athleen 5cool to the touch5, with clear si#ns of lividity and sli#ht ri#or mortis. ('. 69+)469+0). ; 1olin#broo2 Police /fficer informed <an /ver that Illinois %tate Police (5I%P5) would handle the investi#ation. ('.69+9469+().


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 Dalat 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, <an /ver and Deel photo#raphed athleen. They found her medication bottles in her 2itchen. ('.69+6). Trooper Dalat found oran#e juice and pills on the 2itchen counter, and a mu# of tea in the microwave. ('..698). <an /ver transported athleen to the @ill &ounty mor#ue. He processed athleen:s body, writin# in his report, 5it was felt at the time by all parties that there were not si#ns of any foul play or trauma for this death investi#ation.5 ('.699.). !onetheless, investi#atin#, Troopers &ollins and Dalat conducted four primary interviews in =r. &arcerano:s house, #leanin# no inculpatory information concernin# Drew. ('.6-)84)9 ). ;t approBimately (E)) a.m. on =arch +, +))8, &ollins and Dalat interviewed Drew at the 1olin#broo2 Police Department. Drew eBplained he had spent %aturday, Debruary +-, +))8, at home with his children. /n %unday, Debruary +., he too2 them to the %hedd ;"uarium. 1etween 9E)) and 9E*) p.m., he attempted to return he 2ids to athleen:s, but she did not answer. He too2 them bac2 to his house and went to wor2. He chec2ed at athleen:s a#ain, but she did not answer.


/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 Dalat 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 (Ioloft), 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 Dalat formally summariJed the case and provided their wor2 to


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 duffle ba# 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().


%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. (&.+). &lips from the media interviews were used as substantive evidence a#ainst Drew durin# the %tate:s case4in4chief. ('. 99(+7 '. 0)06(7 &. 0)(9)


1etween $anuary 0., +)0), and Debruary 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 Dorfeiture 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 =orphey testified 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


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


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 couple ways. @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 direct evidence 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 his depth. It was clear to me from the very be#innin# he didn:t possess the lawyerly s2ills that were necessary to underta2e this matter on his own ... =r. 1rods2y was clearly at a


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, and a jud#e, I:ve never seen an attorney comport himself in the fashion that =r. 1rods2y did of #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 I made 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 -ITH STAC@ THAT HAD 6EEN RULED INAD9ISSI6LE, AND -AS HEARSA@ OPINION INSINUATIN8 DRE- -AS 8UILT@ OF 9URDER. A. A%%#"*e. S$'%& *e0e" /&#) , &a0e %e/%'!'e, /'*(e, a/ %&e %"'a (#)"% &e ,, %&e ,'/()//'#* 5a/ p"#%e(%e, 4. a%%#"*e.-( 'e*% p"'0' e7e. %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 (2nd Dist. 1995). Durin# that consultation %tacy said she had 2nowled#e Drew had 2illed athleen and 2new how. %he


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?? 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. He was 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 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 found forfeiture. ('. *.9*7 99(*).

The attorney must assert the privile#e Thus, only the client may waive this privile#e. In 9eG 8"!!i"*e o= Dec3e!, at *0*. ;ccordin#ly, it is immaterial that an attorney called as a witness is willin# to disclose privile#e communications. In 9eG Est"te o= 0)sse, 332 Ill App. 25#, 2$$, 75 -.E. 2d 3$ (2nd Dist. 19%7). %ee Illinois 'ule of Professional &onduct ;rticle <III, Preamble K8L and 'ule 0.(7 People v. Ad"> (1972), 51 Ill.2d %$, %# ("uotin# - $. @i#more, Gvidence R ++.+ (=c!au#hton rev. ed. 0.(0)), cert. denied (0.6+), %09 &.'. 9%#, 3% /. Ed.2d 21#, 93 '.Ct. 2#9.


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.

;n objection at the hearsay hearin# was overruled. ('. *-..7 *.9+). 1ut before trial 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 the rulin#, 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 evidentiary privile#e the defendant has standin#. %ee for eBample P"!3inson v. Cent!"l D)P"*e @ospit"l, 105 Ill App 3d #50 (1st. Dist. 19#2)(Hospital had standin# to raise non4party physician4patient privile#e)7 cf &nited 't"tes v. : ite, 7%3 7.2d %##, %9% (7t Ci!. 19#%) (The Tovernment, however, cannot appeal based upon the inade"uate protection of someone else:s privile#e. In so sayin#, we are not unmindful of the duty of every lawyer to brin# to the attention of the trial court possible ethical problems in the case7 nor do we find fault with the Tovernment 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 that privile#e applied. Drew>s "uarrel on appeal is both with the overrulin# earlier objection and with ;ttorney %mith>s failure to obey the court>s rulin#, and the court>s failure enforce its> own rulin#. Nnder the uni"ue facts of this case defendant has standin# on appeal, #iven it is at this point an evidentiary issue,as well as the court>s failure to apply its> correct rulin#. Durther, #iven the prosecutions and counsel>s failure to respect the privile#e, and #iven %tacy was not present, Drew was, and is, the only one who can ur#e the court to follow the law. In 9e Adoption o= 0";, .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#ht to its> attention. To find standin# wantin# would ma2e the actions of %mith, the prosecutor, and the &ourt immune from review.


&nited 't"tes, 315 &.'. $0, 71, $2 '. Ct. %57, %$5, #$ /. Ed. $#0 (19%2), superceded by statue on other #rounds. 0o)!1"il, v. &nited 't"tes, %#3 &.'. 171, 179 (19#7). ;t trial, havin# correctly held %tacy:s conversation with %mith was privile#ed the court barred the prosecution from presentin# it. Cet when the defense called %mith, the issue of privile#e was ineBplicably abandoned. The rulin# necessarily had to apply to both sides. The court should not have allowed the defense to call ;ttorney %mith. If the consultation was privile#ed, it was privile#ed. Gnd of story. &ertainly, the idea of not allowin# either side to call a particular witness for a myriad of reasons is not novel, it happens all the time. =oreover, here the court 2new the witness was #oin# to devastate the defense. That provided a secondary basis F the court 2new it was le#al suicide to call %mith. The harm cannot be mar#inaliJed. %mith never should have testified at the hearsay hearin#. His eBplosive testimony was essential to the findin# Drew had a reason to ma2e %tacy unavailable. He never should have testified at trial. The consultation was ruled inadmissible on the basis of privile#e. The court should not have blithely stepped aside simply because the defense wanted to call the witness. Privile#e is not party dependent. The trial court ou#ht to have enforced its> order, rather than allow defense counsel to commit malpractice. 6. D"e5 "e(e'0e, '*e!!e(%'0e "ep"e/e*%a%'#* 5&e* (#)*/e , !#" *# )*,e"/%a*,a4 e p)"p#/e, (a e, A%%#"*e. S$'%& a/ a 5'%*e// /# %&a% &e (#) , %e %&e C)". %&a% S%a(. &a, '*!#"$a%'#* a4#)% &#5 D"e5 D' e, ;a%& ee*, %&a% D"e5 %&#)7&% S%a(. 5a/ %e '*7 pe#p e &e D' e, ;a%& ee*, a*, %&a% D"e5 5a/ a ,'"%. (#p. ; person char#ed with a crime has the ri#ht to eBpect his lawyer:s "uestions to prosecution witnesses will not help the %tate prove its accusationO SDor defense counsel to elicit testimony which proves a critical element of the %tate:s case where the %tate has

not done so upsets the balance between defense and prosecution so that defendant:s trial is rendered unfairO> 2"c3son, 31# Ill.App.3d "t 32#, 7%1 -.E.2d 102$. Defense counsel:s repeated and mis#uided efforts to elicit dama#in# testimony not introduced by the %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 (1st Dist. 2005). If this statement holds true, what of the defense attorney who elicits from his own witness testimony to prove the accusationP 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 5could we #et more money out of Drew if we threatened to tell the police about how he 2illed athy. (' 0)66+)7 5That she K%tacyL had so much s4h4i4t on him KDrewL at the police department that he couldn:t do 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# othersE That %tacy said Drew was furious with her because he thou#ht she had told his son that he had 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 tell the police about how he 2illed athy7

The entire eBamination is included in the ;ppendiB.



%he specifically used the word 5how:: in describin#, not just the fact 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 the 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 %ee Drew Peterson Defense @itness called STift Drom Tod> by Prosecutor. 5It:s a #ift from Tod,5 %tate:s ;ttorney $ames Tlas#ow was overheard sayin# O after %mith finished testifyin#, and 51rods2y just wal2ed bac2ward over a cliff with Drew Peterson in his arms,5 said athleen IellnerO 4 (httpE?? *)?news?ct4met4drew4peterson4trial4)-*)4+)0+)-*)V0Vstacy4peterson4bolin#broo24 bathtub4peterson4attorney4joel4brods2y)


inadmissible. Illinois 'ule of Gvidence ()+.) Gvery criminal defendant is #uaranteed the ri#ht to effective assistance of competent counsel. 8c8"nn v. 9ic "!dson, 397 &.'. 759, 771 (1970)H 't!ic3l"nd v. :"s in*ton, %$$ &.'. $$#, $#7 (19#%)H People v. Al;"nese, 10% Ill.2d 50%, 525<2$, %73 -.E.2d 12%$, 1255<5$ (19#%), ce!t. denied, %71 &.'. 10%% (19#5). ; trial strate#y is unsound when no reasonably effective criminal defense attorney, facin# similar circumstances, would pursue the strate#y. ) People v. 7letc e!, 335 Ill.App.3d %%7, %53, 7#0 -.E.2d 3$5, 370 (5t Dist. 2002). If there is a reasonable probability that, but for counsel:s unprofessional errors, the result of the proceedin# could have been different. (People v. /e=le!, 29% Ill.App.3d 305, 311, $#9 -.E.2d 1209, 121% (199#) (citin# 't!ic3l"nd, %$$ &.'. "t $95) reversal is re"uired. Here the evidence was tenuous, even with the error, thus the probability of harm from the mista2e is overwhelmin#. 'e#ardless of the forfeiture rulin#, the testimony was ran2 hearsay because the witness was as2ed about prior testimony, not what happened. ;s presented the testimony could not support a findin# 5that the witness has personal 2nowled#e of the matter5. I'G ()+ (identical to former D'G ()+). ;lthou#h personal 2nowled#e can include inferences, the inferences 5must be #rounded in observation or other first4hand personal eBperience5 and cannot simply be 5fli#hts of fancy, speculations, hunches, intuitions, or rumorsO5 5issse! v. P"c3e! En*6* Assocs. Inc., 92% 7. 2d $55,$59 (7t Ci!. 1991)7 'ee "lso &nited 't"tes v. '"ntos, 201 7. 3d 953, 9$3 (7t Ci!. 2000)(city employees were improperly allowed to testify they had no doubt or personal feelin#s about alle#ations because statements were speculative and invaded the province of the jury)7 (8"!=i" v. +.C. Ii!""t 0"n"s3i, #7% 7. ')pp. 5$0, 5$3 ('.D.-.(. 199%)(a witness has personal 2nowled#e if he or she testifies from #eneral observation and 2nowled#e, and not upon conjecture), vacated on other #rounds 0)) D. *d +8* (+nd. &ir. 0..().

/ne of fellow defense counsel who ar#ued a#ainst callin# %mith was overheard in the hallway proclaimin# I:ve filed 68 (eBpletive) motions to 2eep him out and now you:re #oin# to undo all of it. %ee httpE?? 00?news?chi4drew4peterson4fires4lawyer4who4opposed4savio4divorce4lawyer4as4witness4 +)0+).00V0Vlead4attorney4joel4brods2y4stacy4peterson4drew4peterson. ;s the eBamination pro#ressed fellow counsel repeatedly called lead counsel over in an effort to #et him to stop. ('. 0)69040)-96).


In People v. '"l*"do, 200 Ill.App. 3d 550 (1st 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 eBaminationO1y pleadin# not #uilty, defendant was entitled to have the issue of his #uilt or innocence of residential bur#lary presented to the court as an adversarial issue. Defense counsel:s conduct in this case amounted to ineffective assistance of counsel because it nullified the adversarial "uality of this fundamental issue. People v. '"l*"do, 200 Ill.App.3d 550, 553, 55# -.E. 2d 271, 27% (1990). 3i2ewise, in People v. 0"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 by defense counsel. It was at this juncture that defense counsel elicited from the defendant a damnin# admission. Nnder "uestionin# by defense counsel, the defendant admitted that althou#h he had earlier told the police that he did not 2now @ilson, his alle#ed accomplice in the crime, in fact he 2new @ilson S"uite well.> This evidence is clearly harmful to the defendant. ;nd, a review of the record reveals that the #ravity of the harm caused by this evidence was lost on defense counsel, as he continued to "uestion his own client 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 (1st 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, 1170<71 (1st Dist. 2005)(ineffective when defense counsel established defendant was at scene, connectin# him to the crime)7 People v. 9ose>ond, 339 Ill. App.3d 51, $5?$$, 790 -.E. 2d %1$, %2# (1st Dist. 2003)(5%ound trial 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. 0"ile,, 37% Ill.App.3d $0#, $1%?15 (1st Dist. 2007) (defense counsel elicited testimony that harmed the defendant:s case when he brou#ht forth evidence that the defendant had

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 reinforce the 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-AS PRINCIPAL ATTORNE@, 6@ SI8NIN8 A 9EDIA RI8HTS CONTRACT -HEN RETAINED, CREATED A PER SE CONFLICT.


KTLhe "uestion of whether a pe! se conflict eBists is a le#al "uestion we review de novo. People v. @e!n"ndeA, 231 Ill. 2d 13%, 1%% (Ill. 200#). @hen %tacy disappeared, all eyes turned toward Drew. @hile he may have reveled 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()*). @hyP In a manner of months, 1rods2y went from obscure to sou#ht after.0 The ri#ht to be heard would be, in many cases, of little avail if it did not comprehend the ri#ht to be heard by counsel. Gven the intelli#ent and educated layman has small and sometimes no s2ill in the science of law. If char#ed with crime, he is incapable, #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 put on trial without a proper char#e, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lac2s both the s2ill and 2nowled#e ade"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#h he be not #uilty, he faces the dan#er of conviction because he does not 2now how to establish his innocence.

.ideon v. :"inB!i* t, 372 &.'. 335, 3%%?3%5 (19$3). 'epresentin# Drew Peterson F landin# bi# name clients a watershed momentO httpE?? cases4lawyers4drew4peterson. !onetheless, #iven the pe! se conflict why does not matter.


Drom 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 a contract with %eli# =ultimedia, Inc. f?s?o Tlenn %eli# (%eli#).0 The a#reement called for %eli# to provide publicity and promotional services for Drew and?or 1rods2y. (&. 0+-9 F 0+.)). Dor 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).

&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 were accusatory in nature and conducted with an eye towards provin# Drew>s #uilt, as2in# rhetorically what lawyer would do thisP ('. 9(*) F 9(8)).

;lthou#h the contract was not re4si#ned, %eli# continued to represent 1rods2y (httpE??, throu#h the trial, even appearin# on T< with 1rods2y on DoB!ews discussin# earnin# opportunities from the case. httpE??


This was not a contract to protect Drew, but to provide publicity and promote fees for 1rods2y himself. Thus, 1rods2y had a pecuniary interest in the value of the publicity, re#ardless whether it was prudent or sensible. The more sensational the case, the more interest for 1rods2y. 1y enterin# into the contract, 1rods2y violated the followin# Illinois 'ules of Professional &onductE a) 'ule 0.6(a)(+) in that there was a si#nificant ris2 the representation would be effected by the personal interests of the lawyer (the comments in part 0) spea2 to financial conflict)7 b) 'ule 0.-(a) in that he entered into a business transaction with a client, without safe#uards)7 and c) 'ule 0.- (d) ac"uired ri#hts (KpLrior to the conclusion of representation of a client, a lawyer shall not ma2e or ne#otiate an a#reement #ivin# the lawyer literary or media ri#hts to a portrayal or account based in substantial part on information relatin# to the representation.) Ill. 'ules of Prof>l &onduct 'ules 0.6 and 0.- (+)0)). (The commentary to 0.- (d) states its breach causes a conflict). The rule codifies the commonsense precept that lawyers cannot be loyal to their clients if their own financial interest clouds their jud#ment as to the best course of representation. Plainly put, attorneys breach their duty of loyalty by enterin# into a contract that provides an incentive for them personally to capitaliJe from sensationaliJin# representation of a client. ('.00966 and '.00((9). 0 The rules violations are pe! se conflict. ; pe! se conflict eBists when facts about a defense attorney>s status . . . en#ender, by themselves, a disablin# conflict. @e!n"ndeA, 231 Ill.2d "t 1%2. ;ccord Illinois v. A)stin 8., 2012 I/ 11119% C #1. (;s we eBplained

'ee "lso Teoffrey &. HaJard, $r. X %usan P. onia2, The 3aw and Gthics of 3awyerin# 8.- (0..)) (The reason for prohibitin# such arran#ements is that what ma2es S#ood copy> does not necessarily ma2e a #ood defense.).


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!eitAe!, 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 his conviction. +",lo!, 237 Ill.2d "t 37%<75, 930 -.E.2d 959)H A)stin 8., 2012 I/ 11119%. The Illinois %upreme &ourt anticipated this ineBcusable conflict in People v. ."c,, 125 Ill.2d 117, 135 (Ill. 19##). The &ourt e"uated the conflict arisin# from a literary contract with that from multiple representations. Id. ."c, involved a boo2 contract rejected by counsel. Id. at 0*8. The &ourt reasoned that the mere fact that the defendant:s attorney was offered, and refused to accept, a contract for publication ri#hts does not constitute a Stie> sufficient to en#ender a per se conflict. Id. at 0*(. 1ut, in so doin#, the &ourt clearly si#naled that acceptance of a media contract would have resulted in a per se ineffective of assistance claim. The &ourt eBplainedE The ac"uisition of financial ri#hts creates a situation in which the attorney may well be forced to choose between his own poc2etboo2 and the interests of his client. <i#orous advocacy of the client:s interest may reduce the value of publication ri#hts7 conversely, ineffective advocacy may result in #reater publicity and #reater sales. In fact, it has been held that the ac"uisition of such boo2 ri#hts by a defendant:s attorney constitutes a conflict of interest which may so prejudice the defendant as to mandate the reversal of a conviction. Id. at 0*9.


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 media ri#hts concernin# the conduct of the representation creates a conflict between the interests of the client and the personal interest of the lawyer. =easures suitable in representation of a 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$#). The &ourt held that, in li#ht of this previous relationship with the victim of the robbery, there was si#nificant ris2 that the attorney would not advocate for his client with sufficient vi#or. ;lthou#h there is no showin# that the attorney did not conduct the defense of the accused with dili#ence . . . sound policy disfavors the representation of an accused . . . by an attorney with possible conflict of interests. Id. ;t bottom, KtLhe assistance of counsel means assistance which entitles an accused to the undivided loyalty of his counsel and which prohibits the attorney from . /ur %upreme &ourt obviously finds this conduct deeply disturbin#. ;ttorney Herbert Hill en#a#ed in misconduct by violatin# 'ules 0.-(b) and -.8(a)(0) of the Illinois 'ules of Professional &onduct in "tte>ptin* to ac"uire a media ri#hts assi#nment durin# the course of his representation of his clients. Holdin# the conduct to be unprofessional and in violation of the 'ule the attorney was suspended from practicin# law. In t e 8"tte! o= @e!;e!t @ill, -o. 8.9. 12575, (199$)7 'ee "lso :in3le! v. Fe"ne, 7 7.3d 30% (2d Ci!. 1993) (contin#ency arran#ement between counsel and criminal defendant #ave rise to pe! se conflict of interest).
0 32

. . underta2in# the dischar#e of inconsistent obli#ations. %ee also People v. Coslet, $7 Ill. 2d 127 (Ill. 1977)(attorney cannot represent defendant and also represent victim>s estate). cf People v. 0"n3s 121 Ill.2d 3$ (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 AD9ITTIN8 PASTOR SCHORIAS TESTI9ON@, 6OTH AT THE FORFEITURE 6@ -RON8DOIN8 HEARIN8 AND AT TRIAL, IN CONTRA:ENTION OF THE 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$9, 721 -.E.2d 539, 5%2 (1999). !evertheless, review will be de novo KwLhere a trial court:s eBercise of discretion has been frustrated by an erroneous rule of law.... Id. at 98+. The court below made two separate rulin#s rejectin# =r. Peterson>s challen#e to the testimony of Pastor %chori. The court determined at the pretrial hearsay hearin# that the privile#e did not apply to counselin# in a public place. ;fter the trial, when that was shown to be incorrect, the court newly asserted that the counselin# itself did not merit the privile#e. Gach rulin# misapprehends basic tenets of privile#e law. A. ReE)'"e$e*% %&a% %&e (#)*/e '*7 4e '* a p"'0a%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,

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 of counselin# 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.

The party assertin# privile#e must prove that all of the elements of the privile#e eBist before the court can eBclude the testimony. People v. Die!c3s, ## Ill. App. 3d 1073, 1077 (19#0). Here, the court before the trial ac2nowled#ed the eBistence of all of the elements in this case eBcept the element of confidentiality. Privile#e belon#s to both the spiritual advisor and parishioner, so if the spiritual advisor willin#ly testifies, the defendant must prove that the rules of practice of the relevant reli#ion forbids disclosure. People v. Die!c3s, ## 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 marital counselor. The Pastor further testified that there were not any written precepts for him to follow. 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. ('. 0(9( F 060*).
0 34

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#


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. Dor instance, in People v. Die!c3s, ## 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>s landlord 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!c3s 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).


%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"!tA v. :en*e!, 12% -.:.2d %#9, %92 (19$3), (holdin# that conversations in public 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 /EEI' 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


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"7. p"'0' e7e @hen =r. Peterson renewed his privile#e challen#e after trial, the court did an about 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


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 the communication in confidence and his professional character as a member of the cler#y. Id. at (.(4.6. %ee also 4 io v. 8"son, 2011 4 io App. /EEI' 27$7 (2)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 2)!, Investi*"tion, 91# 7.2d 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, Illinois courts have not decided the issue s"uarely, but the court, in &ampobello summariJed that, to fall under the protection Kof the statuteL, a communication must be an admission or confession (0) made for the purpose of receivin# spiritual counsel or consolation (+) to a cler#y member, whose reli#ion re"uires him to receive admissions or confessions for the purpose of providin# spiritual counsel or consolation. *8- III. ;pp. *d at (*9.


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, :IA THE FORFEITURE 6@ -RON8DOIN8 DOCTRINE, HEARSA@ STATE9ENTS THAT THE COURT HAD PRE:IOUSL@ FOUND UNRELIA6LE.


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' 5D115?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 Two of the ei#ht statements F athleen %avio>s statement to /fficer ernc and athleen %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 court ori#inally determined to be unreliable #iven that the forfeiture by wron#doin# doctrine articulated by the Illinois %upreme &ourt in @"nson serves both as an eBception to the hearsay rule and to eBtin#uish confrontation clause claims. 23# Ill.2d "t 97. In both conteBts, the specific intent to ma2e a person unavailable as a witness, must be demonstrated. .(.


prevent the witness from testifyin#. 55% &.'. 353, 3$0 (200#). To apply, the defendant>s purpose in ma2in# the declarant unavailable must be to 2eep him or her from testifyin# at a proceedin#. Id. =oreover, the &ourt indicated thatE In cases where the evidence su##ested that the defendant had caused a person to be absent, but had not done so to prevent the person from testifyin#Yas in the typical murder case involvin# accusatorial statements by the victimYthe testimony was eBcluded unless it was confronted or fell within the dyin#4declarations eBception. Prosecutors do not appear to have even "!*)ed that the jud#e could admit the unconfronted statements because the defendant committed the murder for which he was on trial. Id. at *(04*(+. If a specific proceedin# was not contemplated at the time, defendants would lose their ri#ht to challen#e hearsay evidence on the basis of a bad act, not on the basis of an effort to stymie the justice system. !o one>s ri#ht to a fair trial should be eviscerated merely because he or she is obviously #uilty. 55% &.'. "t 3$1 (citin* C!"B=o!d v. :"s in*ton, 5%1 &.'. 3$, $2 (200%)).

A. T&e p"#/e()%'#* ,', *#% p"#0e 4. a p"ep#*,e"a*(e #! e0',e*(e %&a% D"e5 Pe%e"/#* D' e, ;a%& ee* Sa0'# 5'%& %&e '*%e*% #! $aD'*7 &e" )*a0a' a4 e a/ a 5'%*e// !#" a e7a p"#(ee,'*7. The prosecution failed in this case to show what testimony of athleen>s, Drew wished to avoid. ;t the time of athleen>s death there was a le#al proceedin# pendin# for her and Drew>s divorce. ;ccordin# to the prosecution, Drew 2illed athleen due to a financial motive to 2eep her from testifyin# at the divorce trial. ('. 8--(48--6). The prosecution correctly noted that dissolution of a marria#e normally abates when one of the spouses die. ('ee In !e 8"!!i"*e o= D"vies, 95 Ill.2d %7%, %#1 (19#3)). The prosecution, however, failed to ta2e into account that the dissolution action, or actual final jud#ment as to athleen and Drew>s marria#e had already been decided in /ctober +))*. This &ourt, in In !e 8"!!i"*e o= 0l"c3, 155 Ill.App.3d 52, 5% (3!d

Dist.19#7), eBplained that, althou#h the death of a spouse typically already abates the proceedin#, when there is a bifurcated proceedin# and the liti#ation is already ripe for jud#ment, the proceedin# is able to continue with the absence of the one spouse. The court made clear that the survivin# spouse and the estate of the deceased spouse continue in an adverse relationship, and therefore that the death eBtin#uishes nothin#, it merely substitutes one adverse party (the estate) for another (the decedent), Kand allowsL the controversy concernin# the marital property to live on between two interested parties. D"vies, 5 Ill.2d "t %#1H 'ee "lso 750 I/C' 5D503(e). The supposed #reat million dollar motive ('. 8--.) that Drew had in 2illin# athleen was a fi#ment of the prosecution>s ima#ination. 3i2e the couple in Davies, Drew and athleen were subject to a bifurcated divorce (People>s GBh. 0)8) (&. 0)(() therefore, the only thin# left to settle was the distribution of the marital property. athleen>s estate had the ri#ht to continue the le#al battle of distributin# the marital property. ;s such, the thin#s the prosecution claimed that Drew would not have to pay because of athleen>s death could be claimed by athleen>s estate. ('. 8--.). Indeed, the prosecution>s theory suffered from an even more serious flaw. ;side from the realities of a bifurcated divorce, the prosecution failed to show why Drew would have wished to avoid athleen>s testimony at the divorce proceedin#s. The prosecution focused on why Drew would have lost money from the divorce and how he wanted to 2eep custody of the children. Gven if true, however, such ar#uments provide no reason to infer that Drew would have benefited from avoidin# athleen>s testimony. In other words, Drew may have wished to avoid the distribution, but not her testimony pe! se. !o matter how horrific murderin# a spouse is to escape from the financial or emotional toll


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 divorce proceedin#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 Tiles 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.

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 pre4trial recommendations, even if a trial occurred, meanin# any testimony was meanin#less. (&. -*.7 '. (6.-).


Dinally, 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. /entA, 2#2 7. ')pp. 2d 399 (E.D. 5" 2002), "==6d, 5# 7ed. Appx 9$1 (%t Ci!. 2003), stated that, even if defendant had 2illed the victim to prevent her testimony at a 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. 2o!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. 2ensen, 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"#0e 4. a p"ep#*,e"a*(e #! %&e e0',e*(e %&a% D"e5 Pe%e"/#* D' e, S%a(. Pe%e"/#* 5'%& %&e '*%e*% #! $aD'*7 &e" )*a0a' a4 e a/ a 5'%*e// !#" a e7a p"#(ee,'*7.


1. T&e"e 5a/ '*/)!!'('e*% e0',e*(e %&a% ,e!e*,a*% 5a/ "e/p#*/'4 e !#" S%a(. Pe%e"/#*A/ ,'/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

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


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"e0e*% %e/%'$#*. a% a !)%)"e p"#(ee,'*7. ;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. Dor 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 9ol"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.


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

;lthou#h defendant is loath to re4ar#ue an issue raised and lost in this &ourt previously, this &ourt>s earlier decision that the common law as opposed to statute should apply and therefore that the hearsay admitted under the forfeiture by wron#doin# doctrine need 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, courts will attempt to reconcile any conflict between state le#islation embodyin# a public policy choice 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 of le#islative power reflectin# public policy to protect the ri#hts of defendants. Gven as early as 0.8+, it was well settled Kby the supreme courtL that the le#islature of a %tate has the power to prescribe new and alter eBistin# rules of evidence or to prescribe methods of proof. People v. :ells, 3#0 Ill. 3%7, 35%, %% -.E.2d 32 (19%2). /ver the decades, the Illinois le#islature has enacted many statutes affectin# rules of evidence which have been upheld. 'ee People v. 9ol=in*s>e,e!, %$1 -.E.2d %10, %12 (Ill. 19#%) (collectin# valid state le#islation coverin# admissibility of business records, coroner:s records, rape victims> prior seBual conduct, and defendant:s payment of plaintiff:s medical eBpenses)7 @oe> v. Ii", 239 Ill.App.3d $01, $11?$12 (1992) (commentin# on valid state le#islation coverin# admissibility of evidence, includin# witness competency, prior identifications, prior inconsistent statements). 1ecause the state statute re"uirin# findin#s of reliability does not intrude into the judiciary>s province, no separation of powers violation would arise and the ei#ht hearsay statements found unreliable by the trial court should have been eBcluded.
0 48

C. E0e* '! %&e (#$$#* a5 !#"!e'%)"e 4. 5"#*7,#'*7 ,#(%"'*e app 'e/, %&e ,)e p"#(e// ( a)/e #pe"a%e/ a/ a* '*,epe*,e*% (&e(D #* 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#


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 2e!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 1)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 evidence fundamentally 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


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 a more 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 Due Process. :. THE TRIAL COURT A6USED ITS DISCRETION IN AD9ITTIN8 JEFFRE@ PACHTERAS TESTI9ON@ 6ECAUSE THE STATE FAILED TO PRO:IDE PROPER NOTICE OF THE TESTI9ON@ UNDER RULE 202=4), -HICH -AS PREJUDICIAL PROPENSIT@ E:IDENCE. /n appeal, the trial court>s decision to admit evidence under 'ule 8)8(b) is reviewed for an abuse of discretion. People v. :"!d, 952 -.E.2d $01, $05?0$ (2011)7 &nited 't"tes v. P!ev"tte, 1$ 7.3d 7$7, 77% (7t Ci!. 199%). If erroneous, the admission of


bad act evidence carries a hi#h ris2 of prejudice and #enerally calls for reversal. People v. 8"son, +0. Ill.;pp.*d 6(, -) (8th Dist. 0..0). 'ule 8)8(b) of the Illinois 'ules of Gvidence states in relevant partE evidence of other crimes, wron#s, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. Il. '. Gvid. 8)8(b). The rule also statesE in a criminal case in which the prosecution intends to offer evidence Kunder 8)8(b)L it must disclose the evidence, includin# statements of witnesses or a summary of the substance of any testimony, at a reasonable time in advance of trial, or durin# trial if the court eBcuses pretrial notice on #ood cause shown. Il. '. Gvid. 8)8(c). This recently codified rule is modeled after the Dederal 'ule of Gvidence 8)87 therefore, Illinois courts fre"uently rely on the federal analysis of 'ule 8)8. People v. D";;s, 239 Ill.2d 277, 295 (2010). In this case, the testimony of $effrey Pachter (Pachter) should have been eBcluded because the prosecution failed to provide notice of its intent to introduce bad act testimony, contrary to I'G 8)8(c). I'G 8)8(c) plainly states that if the prosecution indicates that it will offer character evidence of the defendant, it must disclose that evidence at a reasonable time in advance of trial. Il. '. Gvid. 8)8(c). Here, the prosecutors never indicated, pre4trial, they would introduce this evidence. ('. .+)*). ;ccordin#ly, when the prosecution mentioned Pachter in openin# statements a mistrial was nearly declared, because the incident was not #oin# to be presented to the jury. ('. (-0(406). The rule eBplicitly states that the prosecution may only disclose such evidence durin# trial if the court eBcused pre4trial notice on #ood cause shown. Il. '. Gvid. 8)8(c)7 D";;s, 239 Ill.2d "t 2#5. In interpretin# the rule>s federal counterpart, the %eventh


&ircuit similarly stated in &nited 't"tes v. 0lo)nt that without notice, 8)8(b) evidence is inadmissible. 502 7.3d $7%, $77 (7t Ci!. 2007). !onetheless, durin# trial the court reversed itself, opinin# #ood cause was synonymous with constructive notice. ('. .8)9). Drew>s defense was shoc2ed and unprepared for this reversal. @e would be so severely prejudiced Kby introduction of Pachter>s testimonyLOit wasn>t prepared for, it wasn>t addressed in openin#. @e>d have to fi#ure out who is #oin# to handle the witness. @e have to do an investi#ationO@e>d have to #et all sorts of informationO ('. .0.().0 The purpose of the notice re"uirement is to reduce surprise and promote early resolution on the issue of admissibility. 'ee &nited 't"tes v. C"!!"sco, 3#1 7.3d 1237, C.A.11 (7l".) 200%. ('eversin# #uilty verdict because #overnment failed to provide ade"uate notice of 8)8(b) evidence before trial). Here, the trial court correctly noted, unless the Kproponent of the evidenceL can present evidence separate and apart fromOinadvertence or attorney ne#lect to support an ar#ument that there was #ood cause for the delay in compliance, the eBtension will not be #ranted. ('. .*.*). The %tate did not provide any reasonable eBcuse for i#norin# 8)8 (b)>s notice re"uirement. ('. .*.0F.8+.). Thus, Drew could not help but have been ta2en by surprise at the offer of this evidence so late in the proceedin#. Gven the court noted the unfairness of the situation in a collo"uy with the %tate. %o at this point in time if the

The su##estion that Drew>s defense may have been better able to attac2 Pachter is not simply speculation. ;fter losin# the hearsay hearin# Drew replaced two4thirds of his lawyers. The new lawyers discovered important facts to attac2 =ary Par2s (that she was not in class with athleen as claimed) and 'osetto (that he was at wor2 F causin# the court to bar him). @ho is to say that the new lawyers would not have been e"ually successful with Pachter. ;fter all, althou#h re"uired, there was no written proof the ride alon# ever occurred. ('. (699).


defendant attempted to investi#ate KPachter>s testimonyL with this constructive notice that you are now ur#in# upon me, his investi#ation would be Ocompletely fruitlessO ('. .+)*). Thus the &ourt>s reversal so late in the proceedin# was an abuse of discretion. =ore to the point, the &ourt>s rulin# frustrated the purpose of 8)8(c). In ma2in# its> rulin# the &ourt pointed out that the concept of constructive notice would li2ely swallow 8)8(c)>s re"uirements whole. ('. .*.*). In Nnited %tates v. %2ocJen the #overnment introduced 8)8 evidence of defendant>s fli#ht from Illinois to show his consciousness of #uilt. @hile the court declined to reverse %2ocJen>s conviction because he could not show prejudice, its mandate was clearE The #overnment ar#ued, over the objection of %2ocJen>s counsel, that %2ocJen (and his lawyer) were aware of his fli#ht and that the defense had been on notice that the #overnment>s physical evidence of fli#ht %2ocJen>s Dlorida driver>s license, was available for review at any time. ;lthou#h %2ocJen could hardly dispute this, he was not aware the #overnment intended to use this evidence at trial. The point of the pretrial notice is to prevent undue prejudice and surprise by #ivin# the defendant time to meet such a defenseOK@Le a#ree with %2ocJen that the #overnment should have provided proper notice. '3ocAen, %05 7.3d 537, 5%# (7t Ci!. Ill. 2005). Here, as defense counsel correctly pointed out, the prejudice to Drew>s case was eBtreme. Drew>s defense had not time to investi#ate or prepare for Pachter>s testimony. Durther, introduction of this testimony allowed the jury to hear information that tended to paint Drew in the worst li#ht. The simple fact is that the %tate failed to live up to its statutory obli#ation to notify Drew of bad acts evidence. If the Illinois 'ules of Gvidence mean what they say, then the trial court abused its> discretion in allowin# Pachter>s bad acts evidence to come in at trial.



DRE- -AS NOT PRO:ED 8UILT@ 6E@OND A REASONA6LE DOU6T Thus far, Drew has pointed to a bevy of technical errors, all of which re"uire a

new trial. 1ut there is another predominant issue at the heart of this matterE the record is not sufficient to support a findin# of #uilt in this case. The %tate>s theory of the case is that Drew snuc2 in to athleen>s home and murdered her sometime between Debruary +-, +))8 and Debruary +., +))8. (&. +). In support of this theory, the %tate presented in eBcess of +9 witnesses. !ot one provided a first4hand account of Drew>s whereabouts durin# the time frame in "uestion, let alone 2nowled#e of what actions Drew too2 in causin# athleen>s demise. The %tate did not present physical evidence lin2in# Drew to athleen>s body. The %tate did not present forensic evidence lin2in# Drew to athleen>s body. In short, the record is bereft of any fact from which a rational trier of fact may infer Drew murdered athleen. To sustain a first4de#ree murder char#e the %tate must prove Drew too2 an act which caused athleen>s death and that, when he too2 this act, he intended to end athleen>s life. (&. 00+9). If it cannot prove each of these elements beyond a reasonable doubt a #uilty verdict cannot stand. @hile #reat deference is #iven to the findin#s of the jury, a criminal conviction cannot be upheld if the evidence is so improbable or unsatisfactory as to #ive rise to a reasonable doubt re#ardin# an essential element of the offense that the defendant has been found #uilty of committin#. @here the %tate>s witnesses #ive contradictory testimony and no physical evidence lin2s a defendant to crime, a jud#ment of not #uilty is mandatory. People v. '>it , 1#5 Ill. 2d 532, 5%2 < 5%3 (Ill. 1999).


In People v. 9ive!" the %econd ;ppellate District clearly stated that a fact4 finder>s acceptance of certain testimony does not #uarantee its reasonableness. People v. 9ive!", 9$2 -.E.2d 53, $5 (Ill. App. 2., 2011). Indeed, courts must loo2 at the record as a whole and ma2e a common4sense jud#ment as to whether any rational trier of fact could find #uilt beyond a reasonable doubt based on the circumstances of the facts adduced at trial. Here the court is faced with a record saturated by inconsistency and incredulousness. It is important to note at the onset that the %tate did not present a sin#le eyewitness, physical evidence lin2in# Drew with athleen>s body, forensic evidence lin2in# Drew with athleen>s body, or a confession from Drew. ;nd while it is true there is no ma#ic formula for a murder conviction, at least one of these pieces of evidence is usually present where an appellate court upholds murder convictions. 'ee, People v. D" e,", 2013 :/ 597297#, (Ill. App. 1st Dist., 2013). Here the %tate relied entirely on statements that were inconsistent, motivated by pecuniary #ain, and?or severely impeached. Dor instance, ;nna Doman testified to a conversation she and athleen had siB wee2s prior to athleen>s death. Durin# this conversation athleen supposedly told ;nna that Drew threatened to 2ill her to #ain the upper hand in their divorce. athleen made ;nna promise over and over to ta2e care of her children. athleen also instructed ;nna to #et a briefcase of important papers from her %N< if somethin# happened to her. Cet, when confronted with athleen>s death, ;nna did not ma2e any attempt to care for athleen>s children. %he also too2 the briefcase of important papers and put it on a shelf in her #ara#e, leavin# it there for years. @hile ;nna i#nored her sister>s re"uests


about the children and the briefcase, she moved swiftly to find wills or life insurance that may have benefitted her financially. ('. 68+9F68((). The %tate also presented athleen>s sister %usan Doman. !ot only had %usan been ruled unreliable by $ud#e @hite (;. 8), she entered in to a movie contract which stood to benefit her onl, if the %tate obtained a conviction a#ainst Drew. ('. -8*6F-86(). The %tate also presented ristin ;nderson to testify about an incident that alle#edly occurred on $uly 9, +))+. %ettin# aside the fact that this incident was hi#hly prejudicial and irrelevant to the in"uiry of whether Drew murdered athleen on Debruary +., +))8, it was severely impeached by %pecial ;#ent 'obin Uueen who said that ;nderson #ave information in a police interview that contradicted ;nderson>s trial testimony. ('. 0)(*)). Then there was =ary Par2s. =ary Par2s testified that athleen told her about an incident that occurred near Than2s#ivin#, +))*. ;ccordin# to Par2>s memory, athleen told her that Drew attac2ed her and told her he could 2ill her and ma2e it loo2 li2e an accident. /f course, on cross, Par2s conceded that she was not with athleen at the time athleen made these alle#ations. The %tate also introduced evidence from $effrey Pachter concernin# a ride alon# he shared with Drew. Pachter testified that Drew as2ed him to ta2e care of Drew>s wife durin# this ride alon#. 1ut Pachter>s credibility was brou#ht in to doubt with cross4 eBamination that revealed he had previouslyE falsified dru# tests7 owed bac2 taBes7 aided in a wor2man>s compensation scam7 had a seB crimes conviction7 owed #amblin# debts to a boo2ie7 and made inconsistent statements to the #rand jury. ('. .(6- F .6+)). The %tate presented evidence from 3t. $ames &ou#hlin. &ou#hlin told the jury he heard Drew say he>d be better off if athleen were dead outside of a courtroom. /f


course &ou#hlin had previously #iven different variations of the story and the %tate withheld 0!"d, information from the defense that tended to impeach &ou#hlin. ('. 66*+ F 6699). These were the witnesses that the %tate relied on to prove Drew murdered athleen on Debruary +., +))8. They were absent4minded, inconsistent, financially motivated and wholly unbelievable people who couldn>t testify to anythin# concernin# the ni#ht in "uestion because they hadn>t heard or seen a thin#. In People v. 2ones, the appellate court reversed a first4de#ree murder conviction because the %tate failed to prove the defendant>s mental state beyond a reasonable doubt. There the defendant pummeled the victim down a fli#ht of stairs, put his foot on the victim>s throat, then pulled away at the last second, leavin# the victim barely breathin#. ;t a bench trial the court found the defendant #uilty of first4de#ree murder. In reversin#, the appellate court statedE 1ecause a defendant:s mental state is not commonly proved by direct evidence, it may be inferred from the surroundin# circumstances, includin# the character of the defendant:s acts and the nature of the victim:s injuries O @e conclude that the evidence presented at trial was insufficient to establish that at the time defendant placed and held his foot in the area of Howell:s nec2, defendant intended to 2ill Howell or that he was consciously aware that his conduct was Spractically certain> to cause a particular result. People v. 2ones, %0% Ill App. 3d. 73%, 750 (Ill. App. 1st Dist., 2010). In Drew>s case the %tate presented absolutely no evidence in which a jury could infer the necessary >ens !e" to convict for first4de#ree murder. In 2ones there was undisputed eyewitness testimony of an attac2, medical evidence concernin# the victim>s asphyBiation, and a confession from the defendant. Cet the appellate court stated there wasn>t enou#h on record to infer that the defendant had the appropriate mental state. In Drew>s case there is not any evidence delineatin# what steps were ta2en to murder

athleen, let alone any evidence that supports a findin# concernin# the alle#ed actor>s mental state. :II. THE CU9ULATI:E ERRORS DENIED DEFENDANT HIS RI8HT TO A FAIR TRIAL AND CAST DOU6T UPON THE INTE8RIT@ OF THIS PROCEEDIN8. Throu#hout this 1rief defendant identifies abundant substantial defects in the process. The prosecutor will respond that defendant is wron#, that the error(s) were waived, or are de >ini>)s and harmless. They are not. Gvery one of the errors, individually, operated to deny this defendant a fair trial. 1ut, even if this &ourt does not believe any sin#ular error warrants a new trial, the record in its totality re"uires this &ourt reverse this conviction because of the outra#eous cumulative effect of the errors in the proceedin#s. 'ee People v. Fidd (1992), 1%7 Ill.2d 510, 5%%<%5, 1$9 Ill.Dec. 25#, 27%, 591 -.E.2d %31, %%7H People v. '>it (1990), 1%1 Ill.2d %0, $7, 152 Ill.Dec. 21#, 229, 5$5 -.E.2d 900, 911H "nd People v. +",lo!, 2%% Ill. App. 3d #0$, #19, $12 -.E.2d 9%3, 952 (1993). %everal of the errors involve constitutional "uestions. ;ccordin#ly, in order to be found harmless, they must be harmless beyond a reasonable doubt. People v. 'B"**i!t, 2#2 Ill.App.3d $92, 705, $$# -.E.2d $3% (199$). The record before this court easily demonstrates that Drew did not receive the type of fair, orderly, and impartial trial #uaranteed by our state and federal constitutions. In evaluatin# this claim this court should be mindful of some of the errors that space constraints prevented defendant from fully briefin#. Dor eBample, the %tate prosecuted the matter in such a way that shoc2ed the trial court:s conscience. ('. ---- 4 -.)*). This included mentionin# 5hit4man5 $effrey Pachter in openin# statements ('. (9))), lin2in# Peterson to a bullet throu#h inadmissible testimony ('. 60)) 4 60(.),

presentin# evidence in the face of a 0!"d, violation ('. 66(0 4 66-.), presentin# evidence the trial court had previously deemed 5unreliable5 ('. 6.8) 4 6.--7 -8)8 4 -800), presentin# testimony concernin# 5recreation5 of athleen:s death despite countless directives to avoid such a topic ('. ---- 4 -.)*), and impermissibly piercin# privile#ed information for the jury:s review. Gvery one of the errors, individually, operated to deny this defendant a fair trial. Ta2en to#ether, it is clear the cumulative whole of the errors denied Drew the same. /ur %upreme &ourt best stated it best in People v. 0l)e, 1#9 Ill. 2d 99, 137?39, 72% -.E.2d 920, 9%0?%1 (2000)E In response to each assertion of error by defendant, the %tate ur#es that, re#ardless of whether error occurred, the evidence a#ainst defendant at the #uilt and sentencin# phases was so overwhelmin# that the absence of these errors would have made no difference in the outcome of the trial. This court may invo2e the harmless error doctrine to dispose of claims of error that have a de >ini>is impact on the outcome of the case. Fline!, 1#5 Ill.2d "t 157, 235 Ill.Dec. $$7, 705 -.E.2d #50H People v. 0!oBn, 172 Ill.2d 1, 3#, 21$ Ill.Dec. 733, $$5 -.E.2d 1290 (199$). ZZZ Cet prejudice to a defendant:s case is not the sole concern that drives our analysis of defendant:s appealE ; criminal defendant, whether #uilty or innocent, is entitled to a fair, orderly, and impartial trial conducted accordin# to law. People v. 0)ll, 1#5 Ill.2d 179, 21%, 235 Ill.Dec. $%1, 705 -.E.2d #2% (199#). This due process ri#ht is #uaranteed by the federal and state constitutions. 0)ll, 1#5 Ill.2d "t 21%, 235 Ill.Dec. $%1, 705 -.E.2d #2%H &.'. Const., ">end. EI5, J 1H Ill. Const.1970, "!t. I, J 2H 'ee "lso Peeples, 155 Ill.2d "t %#0, 1#$ Ill.Dec. 3%1, $1$ -.E.2d 29% People v. .!een, 7% Ill.2d "t %55, 25 Ill.Dec. 1, 3#$ -.E.2d 272 ('yan, $., specially concurrin#), "uotin# 'c!eBs v. &nited 't"tes, 325 &.'. 91, 107, $5 '.Ct. 1031, 103#, #9 /.Ed. 1%95, 150$ (19%5). Gven if this &ourt does not believe any sin#ular error warrants a new trial, the record in its totality re"uires this &ourt reverse this conviction because of the outra#eous cumulative effect of the errors in the proceedin#s. 'ee People v. Fidd (1992), 1%7 Ill.2d 510, 5%%<%5, 1$9 Ill.Dec. 25#, 27%, 591 -.E.2d %31, %%7H People v. '>it (1990), 1%1


Ill.2d %0, $7, 152 Ill.Dec. 21#, 229, 5$5 -.E.2d 900, 911H "nd People v. +",lo!, 2%% Ill. App. 3d #0$, #19, $12 -.E.2d 9%3, 952 (1993). CONCLUSION This &ourt should find that Defendant was not proven #uilty because the prosecution failed to establish he was at athleen>s, or had any involvement in her death.

;lternatively, this &ourt should hold the errors, at a minimum, re"uire a new trial.

'espectfully %ubmitted, DRE- PETERSON Defendant4;ppellant 1yE VVVVVVVVVVVVVVVVVVVVVVVVVV /ne of His ;ttorneys



NO. 3:13-0157 IN THE APPELLATE 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 '*#'/ ) 0. ) I*,'(%$e*% N#.: 01 CF 1023 ) ) DRE- PETERSON, ) H#*#"a4 e E,5a", 6)"$' a, J". De!e*,a*%-Appe a*%. ) J),7e P"e/','*7 )

CERTIFICATION OF CO9PLIANCE I certify that this 1rief conforms to the re"uirements of 'ules *80 (a) and (b). The len#th of this 1rief, eBcludin# the ;ppendiB, is Difty4Dour (98) pa#es. 'espectfully submitted, D"e5 Pe%e"/#*, Defendant4;ppellant