the next writer called agenda number two case number one two zero three three one people of the state of illinois believe versus drew peterson the counsel ready you may proceed also you are dividing your time you're responsible assistance of counsel issues before the trial began in this case it will court intervened and tainted the subsequent proceedings by holding that the general assembly's procedural protections underlined the forfeiture by wrongdoing doctrine should be ignored but separation of powers ruling flies in the face of many cases of this court that has upheld the general assembly's policy statements governing admissions of evidence as long as they are irreconcilable with case and your decision to walk or sets the exact framework that should be followed because the rocker decision holds that as long as there's some kind of way to reconcile the two pronouncements that of the  be articulated by the supreme court in trials and with respect to the specific intent element the question is what needed to be shown to say the not just that there was a killing but britain has but the right to was to kill the wellness to make that witness unavailable for testimony at a trial so in a typical specific intent crime like burglary it's not enough to say there was a breaking and entering there must be a finding that there was breaking after him for the purpose of committing a felony for tennis hester's question of restructuring taking the loans from the bank it's not enough to show these took out the loans he had to be are finding that he took out the loans for improper purpose namely to evade the reporting requirements that's hard disc wrong wrong here the there was evidence both ways and as a rise and a rational case in michigan evidence both ways that's why the court said we need to have specific intent evidence because we don't know which were the evidence cuts and so without that as a matter of law there has to be a excuse otherwise you undercut the specific funding requirement that is in giles that is in rolonda street so even if you put aside the important separation of powers ruling which is seems to me very clear from walker as a matter wife because she had something on him is that sufficient evidence to show intent to silence witness i don't believe it is a specific intent your honor i mean it's up to me being ram little interest that no of course said over and over again it was that the defendant going to not do not want to share the pension the defendant did not want to shuras kids the defendant did not want to be poor the defendant was jealous of the fact that catherine might have received from the money that's what they focused on  in certain areas of the union about victims of domestic violence and this idea is about a oppressive person and keeping victim of domestic violence was that was that fit in with giles analysis that domestic violence situation should be looked at in a different way obviously domestic violence is fraught with with great difficulties and concerns but i think what the trust was getting at is you can't you have to separate cases in which someone wants to make sure that they're pushing to be a much of the abusing is just hurts as opposed to cases where they want to make sure that they don't testify in court and that's just clear when after statement was drew peterson broke into her home terrorized her all that kind of thing she she went to the police she any action so one has to believe that they did not think that was credible so i don't think that you can find any any fact that he somehow did something to her a year or two later down the road to keep her from testifying about an event that no one had pursued and no one was prosecuting and as far as the record reflects in this case she had never raised again with anybody else although she may have discussed with a friend but there was no indication talk about how this prosecution proceeded because there were the rules just weren't followed when it came to how attorneys should conduct themselves harry smith violated the ethical rules on attorney privilege and came forth and that that attorney client privilege is one of those sacred things that an attorney should never violate his statements were not only used at the pretrial hearing to to make and it doesn't provide any limitation on that someone has to raise it with the court so anyone who's a party to litigation should be able to raise these issues the prosecution was not raising the issue because they needed the testimony it benefited that the prosecution should have never pursued this testimony because they are the representative of all of the people including the defendant and by pursuing the privileged testimony the privileged conversations they in fact were reaching and it was it was though they were violating the defendant's rights to a fair trial assuming the defendant can get over the stand the mission there and stacy waived the privilege by telling the same information the others well she didn't tell the same information to others there was no evidence i know the state makes that argument she had a conversation with neil schori where she said that drew a come home in the middle of the night and had had put women's clothing in the laundry and had told her that she had to lie to the police when they came in questionnaire and then she had a totally different conversation with miss smith she said that i know stuff i know drew killed this woman i know how he killed her and so on it's over they're totally different conversations but even if they were the same conversation if i have a discussion with my friend about something i did that was criminal and then i go hire an attorney and i told the attorney about what i did i certainly haven't weighed the attorney client privilege by telling my friend about it and how do you address this its argument that that representation was declined after the initial consultation and there were privileged in that you have to look at it from her viewpoint from the potential clients viewpoint and that wasn't really what happened the conversation was i don't think i can represent you i think i might have a conflict well can you after some questions for sure i could continue to a some questions the case is that the state cites you tony specifically said i am not going to represent you i cannot represent you in one of the two cases they cite you turn he said this conversation is not privileged i am not acting as your attorney in this regard that never happened here no one has ever suggested that stacy did not believe that she was having a privileged conversation with smith when she had that conversation so though the problem is that if we don't have standing to raise issue and say see clearly wasn't there to assert her own privilege and there's no doubt that the privilege still apply then who is going to raise the issue we cannot have rules ethical rules and evidentiary rules that are chameleon in nature and depend on the end result that we want to reach we have to have evidentiary rules and ethical rules that apply regardless of whether they might constrain the ultimate result or constrain the evidence that's going to be heard and that's also applies that same thing applies to the publicity contract that was entered into here there are clear rules that were in place that said you cannot do this rule one point eight you don't enter into a publicity contract while you're representing someone the one point seven says you don't enter into a business transaction with your client this court's decision in gacy it's clear warning to somebody not to do these things but the courts seem to just throw up their hands and say well in this case we're going to say it's ok there are is a reason why this court has rules the rules of evidence rules of professional responsibility rules of ethics and they need to be followed whether it's drew may please the court house will my name is leah bennett from the illinois attorney general's office on behalf of the people of the state of illinois i will begin with the hearsay question raised by the first search for any for my opponent now defendant has raised three sub claims about the admission of the hearsay through forfeiture by wrongdoing so i'll begin with what seems to be the logically threshold question of what analysis applies to evaluate the admissibility of this testimony the two candidates are the common law standard as later more recently codified in illinois a rule of evidence eight zero four b five and the statutory exception from one section one fifteen ten point six the parties agree that these two analyses differ the common law slash rule standard only imposes on the preponderance to show two criteria that defendant committed the wrongdoing that made the clarence unavailable and that he did so with the intent to make them unavailable as witnesses hear the evidence in question did concern too different to clarence the murder victim in this case the third ex wife kathy and the fourth wife stacy and contrasting that two criteria standard the statutory standard imposes two additional requirements yes it narrows the qualifying wrongdoing to an intentional and knowing murder but in addition to those two requirements also requires the state to prove by a preponderance that there is a sufficient safeguards of reliability and that it's in the interest of justice for the evidence to be admitted the parties agree that these are different standards and while the appeal on this question was pending the rules of evidence became effective as of january first two thousand and eleven which is indisputable even for defendants two thousand and twelve trial so when the appellate court addressed this question it looked at the rule well it's true that the state at the pretrial hearing offered smith's testimony and at the trial it was defendant who called smith as a witness and at that time the state did object to the admission of that testimony but only on the grounds that it would be improper to try to impeach this hearsay statement through smith's testimony so right now it's defendant's position that it is barred by the client privilege and so it's his burden to prove whether it's privileged so it's not that the state has changed its position it's just now we're in the posture of review or defendant is raising this claim and he is the one who called smith as a witness so to the extent that he's trying to claim some sort of error in the present presentation of that testimony he invited that error into the trial and so he is not entitled to secure a reversal on the basis of an error that he himself invited by calling smith as a witness but as to the separation of powers point about the forfeiture by wrongdoing doctrine defendant has confused some important separation of powers principles here he has he has overlooked the fact that there are two different lines of separation of powers and alice sees on one when we're talking about legislation that is addressing the judicial branch there is a small core of types of day to day operations of the courts that the general assembly is just flatly forbidden from ever legislating about but that is not the situation we have here what we have here is a provision on the rules of evidence that is potentially fair game for the legislature to address however only if the legislation is complimentary with court rules because after all we're talking about the judicial branch and court rules like the rules of evidence that this court adopted are the primary source and under cases like walker if there is a conflict between a statute and a rule it is the rule that prevails and for good reason because we are talking about proceedings in the judicial branch now the cases that defendant has cited where separation of powers arguments have been rejected are all distinguishable from this case from this case here i mean walker is a good example because there the ruling question was not even really on the same topic as the statute the rule concerned the initial assignment of cases where as the statute concerned separate substitution of judges but here what we have are is a rule and this statute that address the exact same topic what  does the state have to prove for hearsay evidence to be admissible under the specific exception of forfeiture by wrongdoing the rule imposes two criteria the statute imports is for the two cannot exist side by side now this is crime and did some sections of the statute and that's an important consideration as well the text of that provision provides quote the section in no way precludes or changes the application of the comma so arguably that undercuts the position that they conflict but what it instead seems to envision is that the legislature in two thousand and eight when this provision was enacted and at that time that was before the rules of evidence existed looked at the common law and said ok were acknowledging there a common law doctrine we are not touching that that is continuing to exist unchanged we are now creating a second path for the admission of evidence and we do not change the comma but we are creating a second path side by side if this endorses that reality from subsection g defendant still loses here because remember defendant is insisting that the extra criteria of the statute must apply but by the plain language of subsection g the common law was existing untouched so either way either there is a conflict and the rule governs under well established separation of powers principles or if under subsection g that you can co exist defendant still loses because he has no basis to insist well that's true that's the awkwardness of it and so really if this court wants to address which one which reality should be endorsed that's why the conflict is the better with resolution because there never can be a piece of evidence that is admissible under the statute that is not also admissible under the common law and so that's why it is a better approach to recognize that they conflict that there is no purpose in having two paths as section g seems to envision but in any case because the rules of evidence became effective in two thousand and eleven and because the and fifteen there's really no reason for this court to be concerned because the situation isn't going to rise again and perhaps there's no other case that is in this posture given this very short period of time that we're talking about because the bottom line is that  argument does not prevail either way so turning then to the second subsection about the admission of hearsay defendant's insistence as a matter of law and interpret in the second intent element here is simply has no basis in any case law has invented out of thin air this notion that the state has to specify what testimony it is acting to proceed to prevent that defendant is acting to prevent it is certainly true that like in any circumstance where intent must be proven it is often shown through circumstantial evidence there is very rarely direct evidence from defendant acknowledging his intent and so certainly the extensive compelling evidence that is outlined in the appleby's brief as to both of these declarant does demonstrate how defendant benefited from kathy's absence from stacy from preventing stacy from reporting wrongdoing to police or crime you committed at the other end you see cases around the country that say son and his mother get into an argument and he kills her but that's not enough proof to show specific in time and then we have a johnson case that says one who kills a spouse to avoid a messy divorce is not acting to prevent the spouse from tulsa fine but to eliminate the need for divorce all together so could you tell particular or both kathy and say so if you ok well first i'd like to address the quote from jensen that you just highlighted because it's important to note that in jensen the state was arguing that the intent element was proven because much like in any murder case by killing the witness you always make the witness unavailable what were you talking about killing a spouse that in every case will obviate the need to divorce your spouse because it's noteworthy in jensen i believe it's at page nine of the case eight thirty nine the district court acknowledges that there was no evidence from anywhere that either spouse was seeking a divorce so it was a hypothetical divorce you can't just say now  sure how that helps answer the question of whether what evidence here with her is a divorce going on right that killing her would silence her in summary of the fact that the divorce would be over yes it would be ok so other evidence sure kathy in particular it's noteworthy that at the june two thousand and two hearing on the divorce with regard to the temporary support order that kathy testified and fast forward t october two thousand and three when the divorce judge was making a settlement recommendation about the case how she thought that the marital property and ongoing things were likely to be divided up that when defendant was informed of that he became very upset about how the divorce case was proceeding now fast forward to the fact that the trial on the divorce was set for april two thousand and four approximately a month after kathy died i want to arguing that she appeared to testify the result of the divorce his would have been different yes yes definitely true that is definitely true number one we think that the defendant would have subjectively expected she would testify given the fact that she had testified at the preliminary proceeding that the judge had given indications about how the divorce would proceed which would include that she would get the marital house she would get full custody of the kids she would get approximately half of all of the marital property but fast forward to once she was absent and defendant was able to maneuver the state by having his uncle stand in as the administrator of her estate that what the end result was he was able to fire that a for security and going back to johnson yes if she was not there for the divorce trial he would not have to share his pension with her he would have a better result so what you say if she had been there to testify she would have continued to object to allow a warning all of the marital property to defendant she would have objected to him getting full custody of the children which is what actually resulted once she was absent and he was able to manipulate the system behind the scenes and important quote is from davis davis versus washington from the united states supreme court davis in describing this forfeiture doctrine said quote when defendants seek to undermine the judicial process by procuring or coercing the silence from witnesses and victims the sixth amendment does not require the courts to acquiesce what we have here is defendant completely thwarted the judicial process of the divorce case with kathy by getting her out of the system and and preventing her from continuing to be present to object to his approach to the settlement to his desire about the custody of the children but hasn't that been the debate about the nature of the stock whether it's only equitable doctrine where the court is offended by the conduct that undermines the integrity of the court and therefore allows this evidence in versus the idea that just generally that the with this is unavailable that there's this additional element specifically not just to end the case not just to get a better result but specific intent to show  not just generally the case may go away yes i agree it's important to two points to that the first point is that although it's not enough to show that defendant benefited from the witnesses absence it's certainly relevant it's relevant circumstantial evidence to show intent as well that if defendant were aware of how he would benefit from the witnesses absence and specifically that he was preventing this person from being a witness in a proceeding that bad we're not saying that that is now not part of the consideration that of course is relevant to show this intent and indeed here this is a good case for for how this poster's this ultimate conclusion in this case that defendant knew that kathy was going to testify in april two thousand and four she knew that she was contesting and would not settle this divorce case as to either the property or the child custody and once he made her absent and prevented her testimony her objection was lost and the judicial system was changed the result of that divorce was changed and to take a step back both with regard to kathy and stacy we should remember the standard of review this is a polemic mary inquiry where the state's burden is to show it's more likely or not more likely than not that the intent is proven that it's at least part of the intent and since the circuit court found that the intent factor was satisfied this is an abuse of discretion standard because after all the circuit jord judge observed the witnesses here for weeks on end dozens of witnesses on this topic and he was in a better position to make this decision ultimately and this court should defer to that and the abuse of discretion standard defendant has not shown that that the circuit court's conclusion was an abus stacy it's also important to note although defendant objects that there was no court proceeding at the time this is not simply the case where the spouse was murdered and jensen says now you don't need to divorce her there was compelling evidence to show that she was imminently within days going to file for divorce and that defendant himself subjectively feared that as part of the divorce process or maybe even independent of the divorce process was going to start to tell others including the police his coworkers at the police force that  he was involved in kathy's murder the fact that there are multiple independently sufficient bases in which to find it made stacy unavailable as a witness does not undermine the sufficiency of that evidence and so if there are no further questions on the forfeiture standard point there are several other issues in this case and i would i would like to turn briefly to begin to the per se conflicts quick question about defense counsel  it's important to remember that the that the state and objecting to this claim is merely suggesting that this type of alleged conflict of interest is better considered as a potential actual conflict of interest not to pursue a conflict now this court has been rightfully hesitant to recognize per se conflicts because that's automatic reversal without a showing of prejudice now when you look at the three recognized categories of conflicts one thing two things that they have in common that are noteworthy is number one they are ties to the prosecution between defense counsel and number two that there are simple factual matters defense counsel have you previously represented the victim in the case yes or no now that is not true in the media contract cont because it is far from clear that media contract in every case will create directly adverse financial incentives or defense counsel instead it could be perfectly aligned with the loyalty to defend a client a book deal maybe more valuable if you secure acquittal for your client and a second point to remember and it's hard to tease out where did these financial motives come from is it truly from the media contract or is it from the fact that the client is a famous client this is a good example because here we have a media contract that expired so there was no financial stake in the litigation during a single day in which the criminal case was pending and instead defendants allegations about how he was trying to get his name in the news he was trying to draw out proceedings to keep his name in the news that has nothing to do with the media contract per se it has more to do with the fact that drew peterson was the client we did not this court should be hesitant to create an incentive for defense counsel to secretly with defendant sign these media contracts have money in their pockets and then hide these contracts in a drawer and be able to say post trial when the court and the prosecution was unaware of these contracts that here is your ticket to automatic reversal to recognize a per se conflict here would actually create a perverse incentive for a defense attorney to secretly sign these contracts in these high profile cases so this by instead analyzing this under the actual conflict of interest inquiry this court would merely be requiring the defendant to connect a few dots to point to the adverse financial incentive and connected to an adverse effect on representation to ensure that this is not an avenue to secure automatic reversal for any case involving a famous client i know in very short on time so if there's any other questions from the court on these legal issues i will rely on my briefs and ask this court to affirm the third district e first of all let me address that the hearsay or issues in the separation of powers if the common law was to apply in this case when they enacted a statute in and the state's attorney in this case said how he went to the legislature he had the stature and acted to help him to indict and secure a conviction against mr peterson if that's in the court record those comments if the common law was to apply then why have the staff in the statutes meaning us so the legislature in their judgment decided that in this limited circumstance the statute should apply and the and that's not uncommon there is a whole section of the code of criminal procedure where the legislature is may ever d'etre determinations about other crimes evidence about evidence and sex cases about business records and so on and so forth he clearly is within their purview to make to pass statutes govern when certain evidence is otherwise admissible and it's up to the courts to then apply the statute in a meaningful way that's what would have to remember why should it be treated differently than when there's a kind of between a rule well there's not a conflict between the rule and the statute i understand that by analogy but why should it be treated different you're arguing don't look at the common law there's an answer that is in conflict with common law closing counsel indicated that it should be treated as if there was a rule that if there was a rule and come in the statute that the rule would take priority if there were identical i think the rule would take priority if there was an identical rule but there wasn't this this court does not enter the rule of evidence to apply for force richer by wrongdoing in a murder case when a witness is about so this court does not have a rule that's the same as the statute there's a statute that applies in a certain situation and then there's the rule that this court has crafted but the two are not the exact same if the legislature were to pass a rule that said that relevancy is defined as and distinction is that the statute is different in the requirements of the statute is different in its requirements than the common law that's clear the statute imposes additional requirements more than what this court has fallen for instance in the hanssen case where the court said basically that reliability there wasn't really much of a mission that case that reliability was not something that the court you don't but they said requirements in that instance the the common law would take priority with the legislature passed a statute after this court decided the handsome case so i think that it's their prerogative to pass a statute after a court decision is made and say we know there's just quick decision but we would like the law to be this in this situation and i think that that's a fair reading possibly of what happened here so and that's the checks and balances that exist so the legislature passed the statute said under these circumstances this is what should apply and i think that the court was bound to follow that if if after the scatcherd came out that was a rule that indicated quite the forfeiture by wrongdoing what what requirements are necessary it's i'm just trying to understand your position if it's the fact that out of the case law came requirements versus out of a rule came requirements that th already and there's a separation of powers and it seems like you're saying that because the statute came out after the case law and because that statute had it just no requirements that therefore the when you've got the murder of a witness there are other situations a forfeiture by hunger you can pay off a way you can can just do other things to entice them not to show up and so i think in that situation but in this limited circumstances the legislature is sad and the end they said as a matter of policy we want these additional protections in these cases and the state says that well they argue not only should the rule apply but they they whittled away at the specific attack requirement saying that well if there was any benefit to the defendant that's all you have to see does the the defendant benefit by the death and that's the exact opposite of what jensen and the other cases the state says that if there had been a divorce trial there would have been a fairly different result that's the opposite of what they argued in the trial court and in fact on the interlocutory appear that they took one of the issues was they wanted to call an expert witness who was going to testify that kept had been around and there'd been a divorce trial the same result would have been at the end of the divorce trial as was at the pretrial in other words the judge would have listened all the evidence and then done the exact same thing sh availability of the witnesses occasioned by murder it's more difficult to get that hearsay testimony before the who are in another's instances that's what the legislature has decided for whatever the powers the reason is maybe they think because  witness just right in domestic violence cases or in certain sex offenses you've got different rules the legislature is said certain evidence should be allowed in in those cases and in other cases it isn't legislature who has sa in a murder case there are these additional requirements before you admit this evidence but you're not talking about the trial here the murder trial you're talking about the murder of the witness no matter what the evidence might be used and it could be  for whatever like you're talking about when a witness is murdered that is that is correct and i just if i can move on to one for one moment before my time runs out and the selection conflict issue is i was listening to counsel  argue i really and i don't mean this disrespectfully it was kind of offended by that that there's going to be some secret thing the defense attorneys are not going to do we're going to enter into media rights contracts and we're going to bury him in our desk drawer and we're going to hold them there so that we can go out at the end of the case and claim that there was some per se conflict apparently risking our license in doing so that's just that's just to me that's not what happened here what happened here is that somebody during the relationship that they had and it was a continuous relationship relationship is not defined by the date of the indictment during the relationship if i could just finish this point they entered into this contract and then they sensationalize the trial now maybe a better council wouldn't have sensationalized the trial and i just want to address why because when he called hillary smith and we've made all the arguments why he was in effect and everyone says he called harry smith to impeach shorey surely said that stacy came home and she was told to lock what was she told to lie about she was told a lie about whether or not drew had committed this crime then brodsky goes and calls harry smith and harry smith says stacy told me the drew committed this crime so didn't  shorty's testimony it support the choice testimony yes it was in that your client was guilty now if they think that we're going to enter into media rights contracts so we can go well a case like you thank you thank you mr greenberg mr trent this monday for your arguments or east use the court will take a case number one two zero three three one people versus peterson agenda number under advisement this agenda