Nick Sheley Withdraws Guilty Plea; Change of Venue Motion denied

Friday, November 6, was another pretrial hearing at the Knox County courthouse in the murder case of accused spree killer Nicholas Sheley. The purpose of the hearing was for both parties to argue the defense motion for change of venue and the state’s response to the motion. The court also planned to discuss Sheley’s previously stated intention to change his plea to guilty for the murder of Ronald Randall, 65, Galesburg.


Sheley told the court at a hearing on September 29 that he wished to plead guilty to all 17 counts in the kidnapping and bludgeoning death of Randall. If convicted in Randall’s death Sheley may face the death penalty. Sheley is also accused of killing seven others in the two-state killing spree in late June 2008.


Knox County Ninth Circuit Judge James Stewart denied the defense request for the change of venue saying that moving the trial now would be premature. When Stewart asked Sheley if he still wanted to plead guilty, defense attorney Jeremy Karlin told the court , “He does not wish to plead guilty at this time.” I will cover this in greater detail and supply links to the defense first supplemental motion for change of venue, two defense exhibits and the state’s response to the motion within my “in the courtroom report”:


When I walk into the courtroom, the row reserved for the accredited press, the front row on the defense side of the courtroom, is almost full. I see a guy I know from a radio station I listen to. I haven’t seen him in court before and his mother is a friend of mine, so I stop and say hello. I notice behind the press are people who are representatives of the defense, a private investigator and several administrative assistants. There are a man and woman I don't know but I'm sure are with defense attorney John Hanlon.


There are already a lot of people sitting on the prosecution side of the courtroom. Family of Ronald Randall are sitting in the first and third rows. In the second row are two of Randall’s friends and a couple who I recognize as family of Russell Reed, 93, of Sterling, IL. Reed was the first victim in the alleged killing spree. I take a seat in between Reed’s family and Randall’s friends.


Knox County Victim’s Rights Advocate, Shirley Pringle, is sitting with Mr. Randall’s family in the front row. She turns and says something to me about being a “personality“. I was interviewed by a local weekly paper called “The Zephyr” this week about blogging and Katfish…Ponders. They ran the story on the front page so I guess I’m a “personality” this week. LOL


A woman sitting with Shirley asks me if I’m Katfish. I recognize her as the Victim’s Rights Advocate for Whiteside County. She says she just found this blog the other day. (I didn’t catch her name, but if you are reading this, welcome! ) There are 5 victims of this alleged killing spree in Whiteside County. No doubt she is a great source of help for the relatives of these victims, I know Shirley is invaluable to Knox County.

Sheriff David Clague and Jail Administrator Captain David Caslin are here, which means that Sheley is in the building. I notice Gary Spence the Whiteside County States Attorney is here too as well as a few other I don't know but have seen before. I guess everyone is curious what is going to happen today.

At 9:25 Sheley is brought into the courtroom fully shackled. He is escorted by four Sheriff's deputies and there are two bailiffs nearby, as well as one at the door outside the courtroom. This is all the normal procedure. One thing that is different is Sheley comes in wearing a bullet proof vest. I have seen him with it on outside the courthouse but never in the courtroom. Wonder what's up with that? He sits down at the defense table takes off his readers and closes his eyes.

At 9:50 Judge Stewart calls court in session and we go on the record. At the defense table is co-counsel Jeremy Karlin, then Sheley, co-counsel John Hanlon and then Public Defender James Harrell. Because this is a death penalty case Sheley is appointed 3 attorneys. At the table for the state is Illinois Assistant Attorney General Bill Elward, Knox County States Attorney John Pepmeyer, and also from the Attorney general’s Office Michael Atterberry and Stephen Plazibat. The Attorney General's office will be assisting in prosecuting Sheley in Whiteside County too.

Jeremy Karlin tells the court that the state and the defense have agreed to some stipulations regarding evidence:
Exhibit A-Script of questions from defense phone poll
Exhibit B-Results from the first phone poll conducted June 2, 2009

Exhibit C- I think this was the results from the second phone poll conducted October 8, 2009 ( I’m sorry I don’t have a copy of this).

Karlin then reads off a list of exhibits from various media outlets. I didn’t get them all in my notes but they are referenced in the Defense First Supplemental To Motion for Change of Venue. Stephen Plazibat acknowledges the stipulation for the record.


Jeremy Karlin gets up to address the court. I’m not able to get down direct quotes of what he says but will give you the jest of it, as I understand it. Karlin says that with regard to change of venue this case has received coverage not just locally but perhaps even nationally. He tells the court that we judge ourselves by the way we judge those accused of even the most heinous of crimes. Karlin then presents a Power Point presentation to the court which is shown on the wall adjacent to the defense table.

The beginning of the Power point starts with,” With his life at stake, he should not be tried in an atmosphere by_______________________. “I missed the end but if memory serves me correctly he said something to the effect of …“an atmosphere that as a result of pretrial publicity, the jury pool has been exposed to substantial, inaccurate and inflammatory information about Nicholas Sheley and the present case“…..this is a quote from the defense motion so if not exactly what was said it shouldn’t be too far off the mark.


Karlin cites case law of Irwin vs. Dowd U.S. 717 (1961) and says he feels there are striking similarities between that and the Sheley case.
In that case:

• 6 individuals were killed in 1 county, while the COV motion was granted, the trial was moved to an adjoining county, therefore the same media outlets.
  
  
  
• Facts inadmissible at trial were reported
  
  
  
  
• In the voir dire, 8 of 12 jurors had professed an opinion of the defendants guilt.
  

In this case:

• Alleged murder of 8 in 3 jurisdictions. One in Knox County, Five in Whiteside County and Two in Missouri.
  
  
  
  
• The publicity discussed facts that are inadmissible at trial:
  Defendants desire to plead guilty
  Incidents at the jail
  Behavior in court
  Disagreements with counsel
  Forensic Evidence
  Background of the murder victims
  Behavior of the victim’s family
  Chris Minor from WQAD who conducted a phone interview with Mr. Sheley, and is present in court today, asked Sheley, ”Why don’t you just plead guilty and get it over with?” (More of that interview is cited in the defense supplemental motion on page 9, #18.)
  
  
  
• 85% of those who responded to our phone survey believe defendant is guilty.
  
  
  
• 80% had heard of the case. Karlin listed several different media outlets from throughout the region including print, radio, TV, and bloggings (that's a 1st in this case).
  

(Try as I might to locate the case of Irwin vs. Dowd I wasn’t successful. I did find many cases that cited the case law from Irwin vs. Dowd, but this rookie doesn’t know how to properly reference those cases; therefore, I’ll give it to you in my words, to my understanding. If I’m way off base I won’t be offended if someone corrects me. My understanding of the way Karlin is referencing this case law is that even though the standard for determining potential juror bias is the voir dire process, Irwin vs. Dowd found that isn’t always the case if someone has already developed an opinion, regardless of their intention to judge impartially, so there should be a change in venue.)

Karlin says there has been an enormous amount of media interest in this case, he says this courtroom is full and half is media interest. (I take a count in the gallery, of the 27 people present, 6 are media that I recognize, one I don't know, He's very young could be a student, and since he mentioned bloggers I'll count myself, that's 8 or about 30%. Only a slight exaggeration. LOL) Karlin continues with the Power Point demonstration. For the sake of space, I will refer you to pages 16 and 17 , items #34-38, in the Supplemental Motion For COV that I provided a link to above. This is the same information. Next my notes say that in Exhibit B (link above) there is a decreasing number of people responding. Irwin v. Dowd speaks to that. Blanket venire.(Sorry so cryptic) Karlin then moves on to Exhibit C. This is the results from the second round of phone polls done on October 8, after Sheley's September Battery conviction related to the jailhouse incident. (I don't have copies of these results yet but I'll tell you what I have in my notes.)

• 82% described knowledge of the case.
  
  
  
• 86% believed he was "probably" not guilty
  
  
  
• 4 out of 708 or 1% believe he is "probably" innocent.
  
  
  
• 63% believed because of prior knowledge of the case it would be hard to be impartial.
  
  
  
• 37% reported they believed they could be impartial and decide only on admissible evidence.

Stephen Plazibat stands to present the state's response to the court. He starts by saying that in the recent Battery trial for Nicholas Sheley stemming from the April jailhouse incident, a jury from Knox County was able to be selected in one day. The voir dire was performed in five panels of six venires and one of five. Of the 35 potential jurors there was only ten challenges for cause. This just shows how important the voir dire process is vs. a telephone polling process. In the voir dire potential jurors are given a road map of the judicial process per Supreme Court rule 431.

Plazibat submits the responses obtained from a phone poll should not be given weight because of the respondents anger at the interruption to their daily life. He says that the DVD submitted by the defense of taped responses reflect indignation for being bothered, yet a large percentage say they could be impartial. Regarding the poll itself....there has been lots of publicity in the last year and a half.....but publicity itself is not...( I'm sorry my notes drop off here, I will complete the thought from memory and a review of the state's response to the motion ) enough to bias a jury. This information will be stale and irrelevant because the passage of time removes the prejudicial effect that publicity may have on a potential juror . Most of the publicity cited will be 2 years old by the time of voir dire under our current trial schedule, the Summer of 2010, at the earliest.

The State's Response to the Defense Supplemental Motion only addresses the first phone poll. The newest poll showed that 74-78% of the respondents had limited knowledge or no knowledge of the case. There is a 4% variance because 49 dropped out of the survey by the time they reached this question.

According to the raw data provided , Exhibit B, A total of 850 respondents were polled. At least 205 know nothing about the case and can be best described as ideal prospective jurors. The pollster eliminated these 205 respondents from further participation in the poll. It is important to consider in an actual voir dire, these 205 would not have been eliminated after the first question.

The second question of the poll asked the remaining respondents to describe their level of knowledge about the case. Of 603 (42 dropped out without explanation), 108 respondents hardly remembered anything, 339 remembered some details, and only 156 respondents were very familiar with the case. If you add the 205 respondents who knew nothing to the 108 who knew hardly anything, to the 339 who knew some details about the case, you come up with over 80% of respondents who knew marginal details of the case.

Plazibat says that the fourth question asked of the respondents in the poll, Exhibit A, was for them to give an opinion of the defendants guilt. Once again the 205 respondents who knew nothing about the case were excluded from answering this question, even though one of the permissible answers was "no opinion". If you assume those 205 who know nothing of the case would have answered "no opinion" then only 64% of respondents would have expressed an opinion of "probably guilty" rather than the 87% reflected in the survey results. (Pages 5 and 6 of the state's response give other examples of ways that statistics can be played.)


Regardless of the statistical games that can be played with surveys, the bottom line is that this is exactly the type of inquiry that the United State's Supreme Court has found to be irrelevant to the voir dire process. Plazibat then cites Irwin vs. Dowd U.S. 717(1961) as referenced on page 5 of the state's response.

He says that during this poll respondents are not told any of the rights of the defendant as they would be during voir dire.

Additional considerations suggested by Plazibat are:

• Defendant will soon be moved from Knox County, due to his recent Battery conviction, and will no longer be in the press because of issues related to jail conduct.
  
• Evidentiary hearings in the future should be more effective after these.( ??? that's all my notes say)He asks the court to wait and see what issues arise from future evidentiary hearings.

Plazibat summarized that a poll conducted in the Summer of 2009 will have no validity for a voir dire to be conducted in the Summer of 2010, at the earliest.The question asked of poll respondents regarding their ability to be impartial doesn't even remotely resemble the questions that would be asked by the court on that issue. In Illinois jurors must be informed of essential legal principles, such as presumption of innocence and burden of proof, that deal directly with their ability to be fair and impartial.

Plazibat cited cases that he said had more publicity over a longer period of time, such as the Brown Chicken in Cook county and another case in Du Page County, that were able to seat a jury in the jurisdiction the incident occurred.

Plazibat requests the judge wait to make a decision on change of venue until this case is closer to trial. If another jurisdiction is chosen at this stage, it may be flooded with publicity as well.

Judge Stewart asks the defense if they have a rebuttal? Jeremy Karlin stands again for the defense. he begins by saying that cases in Cook and Du Page Counties cannot be compared to this case because the jury is drawn from a much larger pool.

Karlin argues that Dowd shows that once an opinion is formed, it cannot be set aside. He says the publicity in this case is not going to wane in 6 - 10 months.

Karlin then addresses 3 points the state made:

1. The Prosecutions best friend- Change of Venue only available if it proves impossible to find an impartial jury....as state would have you believe, it's an impossible standard to establish 12 who know nothing about the case.
   
2. Polling is not fair- If polling not fair, why do politicians rely so heavily on it?
   
3. Comparing seating a jury in the aggravated battery case to this case- Aggravated battery case cannot be used as evidence in this case, the transcripts are not available. That conviction will be appealed based on issues from voir dire and the courts refusal of a motion for change of venue. I was not at that trial, this is asking us to assume the jury was asked the proper questions. Karlin notes he doesn't intend this to reflect on James Harrell who was counsel in that case, but he doesn't know what questions were asked. How they were asked ? Did the court properly grant challenges for cause? How was voir dire conducted? Were closed questions asked to elicit assertions or were open questions asked to elicit venire's actual opinions? He concludes this point by saying that if the court accepts the Aggravated Battery trial as a model, the court will be assuming or speculating what happened in that trial.

Karlin tells the court this is a murder case seeking state sanctioned murder. What is the state's motivation? Why objecting to this motion? In order for the adversarial process to work, they must do their job. Do they perceive an advantage to the state in having the case tried in Knox County? Fair trials don't start with a 50/50 proposition, they start unbalanced with the accused presumed not guilty. What harm if the court grants the motion? the court would be more assured of less publicity versus the possibility of greater harm.

Judge Stewart says he will reserve ruling. we will take a 5-10 minute recess. Sheley is escorted out of the courtroom to the holding cell. Some people get up and move around, others stay seated. I stay seated and talk with some of the people around me. I find out that the family of Russell Reed is Mr. Reed's son and daughter-in -law. I won't share everything we talked about, I don't want them to think I am speaking to them just to blab on here. I will share that I learned Mr. Reed was not a total stranger to Sheley. I also learned the Reeds are a very nice couple, truely kind hearted and despite what happened to their father they seem optimistic about life. I admire that.

At 11:14 Sheley is brought back in and a minute later we are back on the record. Judge Stewart addresses Nicholas Sheley. He says, " Mr. Sheley, some time ago you expressed a desire to plead guilty in this case. Jeremy Karlin spoke on behalf of Sheley. He said that despite a recent court filing that stated Sheley wished to plead guilty, despite his counsel's advice to the contrary, Mr. Sheley has decided he does not want to plead guilty at this time. When Stewart asked Sheley if he indeeed had changed his mind and doesn't want to plead guilty, Sheley responded, "it is."

Bill Elward rises for the state and reminds the court that the defense discovery deadline is set for December 1. He says something about a summary motion to compell and that he will have a motion to file by Monday.

Karlin responds when the defense sees a motion to compell we will look at it. Events of the last month......If I feel I can't comply we will file a motion. Feel as being predjudiced by disclosures not being made. Happy to look at the state's motion and file in an amicable manner.

Elward stands again and says, "We have tendered all the discovery we have."

Stewart says to file the motions and he will rule at that time. Stewart then asks Karlin to please submit the audio he played in court as Exhibit 1 and make a record. In fact a disc of the Power Point and the audio for the record.

Stewart then addresses his ruling for the defense Change of venue Motion. He says this may not be the only time this is visited, it is woefully early in the case. A Motion for a Change of Venue is at the discretion of the court, must balance the interest of both parties.

1. He must assure a fair unbiased jury trial.
   
2. The preference is for a trial to be held where the crime took place.
   
3. Must consider the cost of the trial. A capital case is expensive anyway and this trial may last 5 or 6 weeks. The cost to the state must also be weighed.

Stewart says that Mr. Karlin did an excellent job presenting the motion, particularly interspersing comments not heard before. He does acknowledge he realizes the comments were picked and chosen to uphold the defense position. The poll is operated in a vacumn which is different from jury selection. Because we realize that potential jurors watch TV, listen to radio and read newspapers and blogs there is an orientation process for jurors. They are informed of a defendants rights and procedures of the court.

Prospective jurors may have impressions and opinions but when they are questioned individually they are more serious. They are instructed to view evidence in a fresh state of mind and take an oath to follow the law and render fair unbiased opinions. decisions must be made under the law whether we agree with the law or not.

We cannot assume based on a poll alone that the poll answers would remain the same after the entire voir dire. The best test is the entire venire. Stewart adds he was surprised that a jury was sat in just one day in the battery case. Voir dire is the best test. He adds the capital case will be significantly larger, he expects 500+ venire will be called. He notes the disagreement on the conclusions of bias but it still leaves a significant number of people.

Stewart says in conclusion the motion may be premature, I intend to go through voir dire, it makes sense to select....what is the harm? No harm. Knox County has an interest in this case being tried in the county in which the alleged crime is said to have been committed. He then rules The Motion For Change Of Venue is premature- denied. May be revisited if....

Elward stands and reminds the court with discovery deadline set for December 1 another case management hearing needs to be set. After a little juggling of schedules the next hearing is set for December 4 at 1:30.

Jeremy Karlin double checks with Stewart, " We are not precluded from renewing the motion pretrial?" Stewart says correct and court is recessed.

Update-This comment was left on another Sheley entry last night. I moved it over here so you would know how the rest of the day went for NS yesterday:

Subject was welcomed to DOC today at the Northern Reception Center (NRC), Stateville (separate from Stateville Prison proper) in Crest Hill, just north of Joliet. Rather tight security due to his history of assaulting staff. Guy looks like an everyday moron. Nothing remarkable, just creepy.

Some security staff is slightly miffed about the added security; they handle violent scum like this on a routine basis, and this turd doesn't rate exceptional precautions that might serve to augment his reputation or 'standing' among his new peers here. Not that there will be any opportunity for fraternization here.I hope he enjoys the ambiance.

NRC is very high security, 6x9 cells with solid doors (no bars), at least 23 hours per day lockup with no activity. Some of the worst food in DOC. Loud. Bad ventilation.This is the facility where offenders get their crash course in indifference. They transition from being the defendant, the center of attention, to just another of the 1,800 assholes we house until they've found a new permanent home at one of DOC's satellite shitholes. He is now nobody.