No.

3-08-1025

IN THE ILLINOIS APPELLATE COURT

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court
) of the Twelfth Judicial Circuit,
Plaintiff-Appellant/Cross-Appellee ) Will County, Illinois
)
v. ) No. 08 CF 1169
)
DREW PETERSON, ) The Honorable
) Richard C. Schoenstedt,
Defendant-Appellee/Cross-Appellant ) Lower Court Presiding Judge

DEFENDANT - APPELLEE/CROSS-APPELLANT’S
BRIEF AND ARGUMENT ON APPEAL

ORAL ARGUMENT REQUESTED

SUBMITTED BY: SUBMITTED BY:

Andrew P. Abood (P43366) Joel Brodsky (40616)
THE ABOOD LAW FIRM BRODSKY & ODEH
246 East Saginaw Street, Suite One 8 South Michigan Avenue, Suite 3200
East Lansing, Michigan 48823 Chicago, Illinois 60603
 No. 3-08-1025
IN THE ILLINOIS APPELLATE COURT
THIRD DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court
) of the Twelfth Judicial Circuit,
Plaintiff-Appellant/Cross-Appellee ) Will County, Illinois
)
v. ) No. 08 CF 1169
)
DREW PETERSON, ) The Honorable
) Richard C. Schoenstedt,
Defendant-Appellee/Cross-Appellant ) Lower Court Presiding Judge

POINTS AND AUTHORITIES

I. THE TRIAL COURT PROPERLY DISMISSED THIS CASE BECAUSE THE

STATE REFUSED TO COMPLY WITH AN ORDER FOR DISCOVERY

II. THE TRIAL COURT WRONGLY DENIED DISCOVERY FROM

THE STATE INTO SELECTIVE PROSECUTION AND DENIED USE OF
SELECTIVE PROSCUTION AS A DEFENSE AT TRIAL BECAUSE
DEFENDANT-APPELLEE/CROSS-APPELLANT ESTABLISHED A
COLORABLE BASIS, AT LEAST, THE DISCOVERY THRESHOLD

III. THE TRIAL COURT SHOULD HAVE DISMISSED THIS CASE

BECAUSE, AS A QUALIFIED LAW ENFORCEMENT OFFICER
AUTHORIZED TO CARRY, AND THEREFORE POSSESS, AN
“ILLEGAL” FIREARM, DEFENDANT-APPELLEE/CROSS-APPELLANT
IS UNDER THE LAW ENFORCEMENT OFFICER’S SAFETY ACT

IV. THE TRIAL COURT SHOULD HAVE ORDERED A VENUE CHANGE

BECAUSE REASONABLE GROUNDS TO BELIEVE PREJUDICE AND
AN INABILITY TO OBTAIN A FAIR TRIAL EXIST UNDER STATE LAW
AND CONSTITUTINAL DUE PROCESS LAW

ii
The Gun Control Act, 18 U.S.C. § 921 et seq. ……………………………………22-25
The Law Enforcement Officer’s Safety Act, 18 U.S.C § 926 B et seq. ……………ibid
720 ILCS 5/24-1(a)(7)…………………………………………………………………ibid
Supreme Court Rule 303………………………………………………………………..1
Supreme Court Rule 412………………………………………………………………..1
Supreme Court Rule 415………………………………………………………..........1, 9
Supreme Court Rule 604………………………………………………………………..1
Irvin v. Dowd, 336 U.S. 717 (1961)……………………………………………26, 30-31
Murphy v. Florida, 421 U.S. 794 (1975)………………………………………………28
Rideau v. Louisiana, 373 U.S. 723 (1963)…………………………………………….38
Scarborough v. United States, 431 U.S. 563 (1997)………………………………….24
Sheppard v. Maxwell, 384 U.S. 222 (1966)…………………………………………...30
In re Estate of Wernick, 127 Ill. 2d 61, 535 N.E.2d 876 (1989)…………………...8, 26
People v. Birger, 329 Ill. 352, 160 N.E. 564 (1928)…………………………………...26
People ex rel. Carey v. Cousins, 77 Ill. 2d. 531, 397 N.E. 2d 809 (1979)…………...17
People v. Gendron, 41 Ill. 2d 351, N.E.2d 208 (1968)……………………………….17
People v. Newberry, 166 Ill. 2d 310, 652 N.E.2d 288 (1995)…………………...…9-10
People v. Taylor, 101 Ill. 2d 377 (1984)……………………………………………27-29
People v. Weaver, 92 Ill. 2d 545; 442 N.E.2d 255 (1982)……………………………...9
Kaden v. Pucinski, 263 Ill. App. 3d 611, 635 N.E.2d 468 (1st Dist. 1994)……….8, 26
Maxwell v. Hobart Corp., 216 Ill. App. 3d 108, 576 N.E.2d 268 (1st Dist. 1991)...…8
People v. Campobello, 348 Ill. App. 3d 619, 810 N.E.2d 307 (2nd Dist. 2004)...19, 22
People v. Coddington, 123 Ill. App. 2d 351, 259 N.E.2d 382 (5th Dist. 1970)……..27
People v. Derr, 346 Ill. App. 3d 823, 806 N.E.2d 237 (5th Dist. 2004)………….13- 14
People v. Fields, 322 Ill. App. 3d 1029, 751 N.E.2d 97 (5th Dist. 2001)…………...ibid
People v. Hall, 311 Ill. App. 3d 905, 726 N.E.2d 213 (4th Dist. 1999)………15, 16- 17
People v. Kail, 150 Ill. App. 3d 75, 501 N.E.2d 979 (4th Dist. 1986)………………..21
People v. Koutsakis, 255 Ill. App. 3d 306, 627 N.E.2d 388 (3rd Dist. 1993)………....9

iii
Youle v. Ryan, 349 Ill. App. 3d 377; 811 N.E. 2d 1281 (2004)……………………......8
In re Dellinger, 502 F.2d 813 (7th Cir. 1974)……………..……………………..…10-11
United States v. Benson, 941 F.2d 598 (7th Cir. 1991)……………………......12-13, 19
United States v. Falon, 347 F.3d 1000 (7th Cir. 2003)………………………………..17
United States v. Monsoor, 77 F.3d 1031 (7th Cir. 1996)……………………………..11
United States v. Reminga, 493 F. Supp. 1351 (W.D. Mich. 1980)…………………24
Kreshesky v. Codd, 89 Misc. 2d 439 (N.Y. Sup. 1976)……………………………...24
H.R. Rep. No. 108-560 (2003)………………………………………………………….24

iv
 NATURE OF THE CASE

The People of the State of Illinois ("State") indicted

Defendant-Appellee/Cross-Appellant Drew Peterson ("Mr. Peterson") on two

counts of unlawful use of a firearm under 720 ILCS 5/24-1(a). Of

defense counsel’s many pretrial motions on Mr. Peterson’s behalf challenging the

validity of the charge was a motion to compel discovery under Rule 412. Counsel

requested any and all documents the State used or relied upon in deciding to

charge Mr. Peterson, as the State's conduct was arguably vindictive and selective,

in order to investigate the viability of and to support a future hearing to dismiss

this case for vindictive and selective prosecution. The trial court denied the

motion as to selective prosecution and denied its use at trial. But the trial court

also granted the motion as to vindictive prosecution and ordered the State to

disclose any and all documents relied upon in deciding to bring the charge. The

State refused, so the trial court dismissed the case with prejudice as a discovery

sanction under Rule 415(g). The State appealed. Mr. Peterson cross-appealed.

JURISDICTION

Mr. Peterson filed this cross-appeal under Rule 303(a)(3) following the

State’s appeal filed on or about December 12, 2008 under Rule 604(a)(1) from the

final judgment entered in the trial court on or about November 12, 2008, which

dismissed this case with prejudice under Rule 415(g) for the State's refusal to

comply with a discovery order.

STATUTES INVOLVED

Chapter 720, Section 5/24-1(a) of the Illinois Compiled Statutes, 2007.

1
 ISSUES PRESENTED FOR REVIEW

I. DID THE TRIAL COURT APPROPRIATELY SANCTION THE STATE

BY DISMISSING THIS CASE WHEN THE STATE REFUSED TO OBEY A
AN ORDER FOR DISCOVERY FOR VINDICTIVE PROSECUTION?

Trial Court: Yes

The State-Appellant/Cross-Appellee: No
Defendant-Appellee/Cross-Appellant: Yes

II. SHOULD THE TRIAL COURT HAVE ORDERED DISCOVERY FROM

THE STATE AS TO SELECTIVE PROSECUTION, OR AT LEAST NOT
DENIED THE OPPORTUNITY TO RAISE IT AS A DEFENSE AT TRIAL?

Trial Court: No
The State-Appellant/Cross-Appellee: No
Defendant-Appellee/Cross-Appellant: Yes

III. SHOULD THE TRIAL COURT HAVE DISMISSED THIS CASE UNDER
THE LAW ENFORCEMENT OFFICER’S SAFETY ACT OF 2004 (LEOSA)?

Trial Court: No
The State-Appellant/Cross-Appellee: No
Defendant-Appellee/Cross-Appellant: Yes

IV. SHOULD THE TRIAL COURT HAVE ORDERED A VENUE CHANGE?

Trial Court: No
The State-Appellant/Cross-Appellee: No
Defendant-Appellee/Cross-Appellant: Yes

2
 COUNTER-STATEMENT OF FACTS

On October 31, 2007, the State obtained a warrant to search Mr. Peterson’s

home. (C. 15-23; C. 505-10) The warrant authorized the Illinois State Police to

search for and seize a lot of Mr. Peterson’s personal property, including “[a]ny

and all instruments which may have been utilized as a weapon or restraint,

including but not limited to firearms.” (C. 505-10) The Illinois State Police

executed the warrant the same day. (Id.) It seized Mr. Peterson’s firearms,

including the firearm that is the subject of the charge in this case, a

Colt Sporter Lightweight AR-15 .223 Caliber Serial#SL025365 (“the Colt”). (Id.)

On information and belief, Mr. Peterson’s son, Stephen Peterson, who is also a

police officer, delivered the Colt to the Illinois State Police the next day. (Id.)

The seized property was processed at the State’s crime lab, tested,

examined and inspected. 1Following this examination, the Colt sat in an evidence

locker. The State elected not to charge Mr. Peterson with what it thought to be

unlawful possession of the Colt. 2 The State did begin an extensive investigation

of Mr. Peterson, the disappearance of his wife and the death of his former wife.

For the next three months, between January 2008 and April 2008, defense

attorneys filed motions, presented evidence and made argument to the trial court

that the State should return all of the seized property. (Id.) Counsel did not ask

the trial court to order the State to return the Colt. (Id.) Since the Colt was

1
The Court should take judicial notice of People v. Drew Peterson, 07 MR 1063,
in the 12th Judicial Circuit Court, in which Mr. Peterson challenged the State’s
retention of his property and won, prompting the State to charge him in this case.
2
The decision not to charge is consistent with the general principle that a sworn
law enforcement officer is entitled to possess weapons with a barrel length of less
than sixteen inches and also consistent with the lack of any published Illinois
decision of an officer being charged on facts similar to this case.
3
voluntarily surrendered, it was never the subject of any motion to be returned or

any of the trial court’s orders requiring the State to return property. (Id.) Initially,

the trial court ruled that the property, including the firearms (but not the Colt,

which was not the subject of a motion), be returned to Mr. Peterson so long as he

had a lawful permit to possess the firearms. (Id.; see also R. 2-7) Anticipating the

ruling on February 27, 2008, the Illinois State Police revoked Mr. Peterson’s FOID

card, his firearm permit, without notice or a hearing. (C. 505-10)

Then, on March 17, 2008, Mr. Peterson and defense counsel appeared in

the trial court to argue why the firearms should be transferred to Mr. Peterson’s

son, Stephen, who is also a police officer. (C. 12-14; C. 505-10) In response, on

March 25, 2008, the Illinois State Police and the State presented additional ex

parte information to the trial court regarding the firearms (C. 505-10)

Thereafter, on May 13, 2008, defense counsel motioned the trial court to

modify its order, since the government revoked Mr. Peterson’s FOID card, by

ordering the State to release the firearms to Stephen Peterson, a police officer.

(Id.) At an initial hearing, the trial court on the record indicated that it tended to

agree with defense counsel’s position that there was no reason to retain the

property. (Id.) The trial court scheduled the next hearing for May 22, 2008 to

issue the ruling from the bench.

On May 20, 2008, two days before the scheduled hearing to return the

firearms to Stephen Peterson, Officer Chris Landis swore to a complaint against

Mr. Peterson for unlawful use of a weapon. According to Officer Landis, on

November 1, 2007 Mr. Peterson violated 720 ILCS 5/24-1(a) by possessing a

firearm with a barrel length of less than sixteen inches. (Id.; see also C. 2) .

4
 Apparently, the State was under the wrong impression that the trial court’s

ruling would necessarily include the Colt, as opposed to the firearms seized

pursuant to the search warrant that were the subject of Mr. Peterson’s motions.

Chuck Pelkie, the State’s spokesperson, stated publicly to news media,

“We’ve known it was an illegal weapon shortly after the gun was taken into

possession by the Illinois State Police. Initially, the determination was made not

to file a charge in that case[, but] we’re faced with the potential that an illegal

weapon may be put back onto the streets . . . .” (Id.; see also R. 505-10)

Within one week, defense counsel filed a motion to dismiss the case under

the Law Enforcement Officer’s Safety Act (LEOSA). (C. 15-23) LEOSA grants

immunity to certain law enforcement officers from prosecution under state law

for possessing a firearm made illegal by state law, as long as it is not a machine

gun, silencer equipped firearm, or a destructive device. (Id.) The Colt was not.

Before the hearing, the State stipulated to the following:

(1) Mr. Peterson was a qualified law enforcement officer;

(2) Between the warrant execution and the time the Illinois State Police

revoked his FOID card, Mr. Peterson was a duly authorized law

enforcement officer for the Bolingbrook Police Department;

(3) Mr. Peterson was also not under any disciplinary actions with the

Bolingbrook Police Department; and

(4) Mr. Peterson was also not prohibited from carrying firearms by any

state or federal law and was not intoxicated. (C. 381-98)

In its written opinion of July 30, 2008, the trial court found that LEOSA was in

full force and effect at all relevant times, LEOSA covered the Colt, Mr. Peterson

was a duly appointed and authorized police officer with proper identification,
5
authorized to carry a firearm, not intoxicated and under no disciplinary actions

at all times relevant to this case, and maintained the right to carry a concealed

firearm under LEOSA. (C. 407-08) However, the trial court ultimately denied the

motion because it was “unable to find cases or law directly on point” as to

whether LEOSA applies to “possessing” a firearm and “carrying” a firearm (as

defense counsel argued) or whether it only applies to possessing a firearm that

would be legal under state law (as the State argued) (C. 406-09)

Trial was scheduled for December 8, 2008, and discovery commenced.

On September 18, 2008, defense counsel filed a supplemental answer to

the State’s discovery requests. (C. 485-97) Counsel advised that Mr. Peterson

would raise vindictive prosecution and selective prosecution claims as defenses

to this case. (Id.) The State failed to supplement its discovery in response.

Therefore, on October 23, 2008, counsel filed a motion to compel discovery as to

these claims. (C. 505-10) In particular, the motion requested “any and all

[documentation] . . . relating in any way to the decision to bring the pending

charges against the Defendant [that] are related to the affirmative defenses of

[v]indictive [p]rosecution and [s]elective [p]rosecution asserted in this case,” the

documentation being pertinent to the claims. (Id.) The State still failed to.

The trial court heard oral argument on November 12, 2008. (R-194-223)

Defense counsel argued that the purpose of the motion to compel was to aid in

the preparation of a motion hearing into vindictive prosecution and

selective prosecution. (R. 200-08; R. 213-19) The factual basis offered to support

the motion included a timeline detailing the State’s conduct in this case from the

day of the search warrant execution, through the motions to retain Mr. Peterson’s

property, the FOID card revocation, and the State’s published comments in local
6
and national media this case and about Mr. Peterson in general. (R. 203-04) The

State argued that counsel had not made “a colorable claim” of either vindictive

prosecution or selective prosecution to justify discovery. (R. 208-213) The trial

court took the motion under advisement until November 20, 2008. (R. 219-20)

From the bench on November 20, 2008, the trial court ruled that the State

should produce documents. The trial court concluded there was a colorable

claim for vindictive prosecution. (R. 229-31) The trial court granted the motion as

to vindictive prosecution and ordered the State to produce “any and all

documents or reports that were used or relied upon by the State in determining

that this charge would be brought against this defendant.” (Id.) As the State

concedes in its brief on appeal, the State “refused” to comply.

Following the bench ruling on the record, the parties proceeded into

chambers to argue other motions. In chambers, the State asserted that it would be

“better off” if the trial court dismissed the charges to allow the State to rightaway

appeal the case. Then again, on the record in open court, the State asked to have

the case dismissed. (R. 266) The State indicated that it would not comply with the

discovery order, regardless of the time the trial court gave to comply. (R. 273)

The trial court advised the State that the court expected attorneys to follow the

court’s ordered and, “with little option” given the State’s refusal, sanctioned the

State, as the State requested, by dismissing this case. (R. 271-72)

This appeal followed.

7
 LAW & ARGUMENT

I.

THE TRIAL COURT PROPERLY DISMISSED THIS CASE BECAUSE THE

STATE REFUSED TO COMPLY WITH AN ORDER FOR DISCOVERY.

A. Standard of Review

A trial court’s ruling on a discovery issue is generally within the trial

court’s discretion. Youle v. Ryan, 349 Ill App 3d 377; 811 N.E. 2d 1281 (2004). An

appellate court will not overrule a discovery ruling unless there is an abuse of

that discretion. Id. Additionally, the abuse of discretion standard applies to the

trial court's exercise of its authority over procedural aspects of a case, including

sanctions, In re Estate of Wernick, 127 Ill. 2d 61, 77-78, 535 N.E.2d 876 (1989), and

rulings on discovery matters, Maxwell v. Hobart Corp., 216 Ill. App. 3d 108, 576

N.E.2d 268 (1st Dist. 1991). An abuse of discretion is a ruling "made without the

employment of conscientious judgment" or "exceed[s] the bounds of reason"

Kaden v. Pucinski, 263 Ill. App. 3d 611, 615, 635 N.E.2d 468 (1st Dist. 1994).

The issue is whether the trial court properly dismissed this case, at the

State’s request, when the State refused to comply with an order for discovery.

Therefore, the standard of review is abuse of discretion.

B. There is no Abuse of Discretion for this Requested Sanction

At the outset, the Court should be cognizant of the fact that the State

asked the trial court to dismiss this case. The State openly refused to comply with

the trial court’s discovery order, in chambers and in open court. Not only did

State Attorney John O’Connor refuse to comply, he confirmed with his assistant

attorneys, in open court, that the entire State Attorney department refused to

comply (R. 270-72) The State reiterated its refusal, again in open court, even after
8
the trial court explained the court’s narrow discovery ruling. (R. 271-72) As the

trial court aptly stated, the State left the trial court “with little option.” (R. 272)

The appropriate sanction for a discovery violation is left to the trial court’s

discretion and is entitled to great weight. People v. Newberry, 166 Ill. 2d 310, 652

N.E.2d 288 (1995). Each case must be examined on its facts to determine whether

a violation is harmless. People v. Weaver, 92 Ill. 2d 545, 442 N.E.2d 255 (1982).

Whether the violation is “harmless” depends on the strength of the undisclosed

evidence, the likelihood that prior notice could have helped the defense, the

feasibility of a continuance, and the willfulness of the violation. Id. The sanction

must be proportionate to the magnitude of the violation. People v. Koutsakis, 255

Ill. App. 3d 306, 627 N.E.2d 388 (3rd Dist. 1993). Dismissal is an appropriate

sanction, if not necessary, when proceeding will cause a deprivation of due

process or in a miscarriage of justice. Newberry, 166 Ill. 2d at 318.

As Newberry explains, dismissal is particularly appropriate when the

undisclosed evidence is essential to and determinative of the outcome of the case.

The evidence was a field sobriety test that indicated a substance seized from the

defendant at the time of his arrest was not cocaine. A subsequent laboratory test

indicated that the substance was cocaine. Id. at 311-13. The State charged the

defendant with unlawful possession of a controlled substance. Id. During

discovery, defense counsel motioned to examine the substance – but the

substance had been inadvertently destroyed. Id. at 311-15. Dismissal was

appropriate under Rule 415(g), in addition to under the due process clause,

because the substance “was essential to and determinative of the outcome of the

case” – it either was or was not cocaine. Id. at 317-318.

9
 In this case, the trial court did not abuse its discretion. The violation was

willful and unreasonable. The discovery order was narrow. The State needed

only to produce the documents it used or relied upon to bring these charges

against this defendant. Contrary to the State’s conclusion, the trial court did not

give defense counsel carte blanche authority to peruse all of the State’s files at

leisure. Nevertheless, the State stated repeatedly that it would not comply.

The documents the trial court ordered the State to produce are, like the

evidence in Newberry, essential to and outcome determinative of the case. If, as

defense counsel maintains, the State is guilty of vindictive prosecution, then the

case must be dismissed. The evidence strikes at the very viability of this case. Just

as the Newberry evidence would show whether the State did or did not have a

case of cocaine possession, the State’s disclosures will show whether the State

can or cannot bring this case.

Affirming the dismissal is also good policy. To allow the State to

immunize itself from discovery of vindictive prosecution and then avoid case

dismissal is illogical -- vindictive prosecution is designed to prevent

prosecutorial misconduct, but allowing the State to act this way encourages

misconduct by permitting the State to (1) vindictively prosecute, (2) hide the

evidence needed to prove it, and then (3) defy court orders and proceed to trial.

The State consciously chose to disregard the trial court’s order. Whatever the

State’s concerns, the proper choice would have been to appeal -- not revolt. The

lawyer’s duty is not to defy orders, but to follow them. Judges may make

mistakes, but that is what appeals are for. “Lawyers are required to obey even

incorrect orders; the remedy is on appeal.” In re Dellinger, 502 F.2d 813, 816 (7th

Cir. 1974). “[S]omeone must be in control of what happens in a courtroom . . .

10
and [that is] the trial judge, not the lawyer for a criminal defendant nor the

lawyer for the [government].” Id. As the trial court aptly stated, trial courts

regularly “enter[] orders and expect[] them to be obeyed by anybody, including

the lawyers that appear in front of [them].” (R. 272)

The decision did not exceed the bounds of reason. Therefore, the trial

court did not abuse its discretion. This Court should affirm.

C. The Discovery Order was Justified Because There is a Colorable Basis

(at least) of Vindictive Prosecution

Despite the clear articulation of the issue, State mischaracterizes the issue

by claiming that the trial court’s decision that there is a colorable basis of

vindictive prosecution was error – the real issue, as explained above, is whether

the trial court should have dismissed the case. It should have. To the extent this

Court will entertain the State’s arguments about vindictive prosecution,

however, the discovery order was justified because there is a colorable basis (at

least) of vindictive prosecution.

At the November 13, 2008 motion hearing, defense counsel requested

discovery to argue a future vindictive prosecution hearing to dismiss this case. 3

Vindictive prosecution exists if the prosecution was pursued in retaliation for the

exercise of a protected statutory or constitutional right. People v. Fields, 322 Ill.

App. 3d 1029, 751 N.E.2d 97 (5th Dist. 2001) (citing United States v. Monsoor, 77

F.3d 1031 (7th Cir. 1996)). In determining whether the prosecution is retaliatory, a

court should consider “whether (1) the prosecutor harbored genuine animus[]

and[,] (2) absent this motive, defendant would not have been prosecuted.” Id.

3
The published Illinois cases call these “affirmative defenses” and “claims.” No
case has held that using one term rather than the other is a basis for reversal.
11
Animus can be imputed. Id. The defendant need only present “a colorable basis”

of vindictive prosecution to justify discovery. Id. (citing and incorporating

People v. Benson, 941 F.2d 598 (7th Cir. 1991)). A “colorable basis” is “some

evidence tending to show the essential elements of the claim.” Benson, 941 F.2d

at 611. To justify an evidentiary hearing to argue the claim for dismissal, the

defendant must present “sufficient evidence.” “Sufficient evidence “raises a

reasonable doubt that the government acted properly . . . .” Id.

The State mischaracterizes the law in its brief on appeal by claiming that

defense counsel was required to plead facts to pass the ‘”sufficient evidence”

standard. Wrong. That is the standard to justify an evidentiary hearing to

determine whether to dismiss the case. As Fields explains, the standard to justify

discovery is lower -- the “colorable basis” standard. Therefore, defense counsel

needed only to plead “some evidence tending to show the essential elements of

the claim.” Benson, 941 F.2d at 611.

The State’s first argument on this issue, that the trial court should have

decided whether vindictive prosecution is “relevant” to this case before ruling,

lacks merit. First, the State never argued at the hearing. Regardless, the trial court

must have found it relevant. The trial court specifically allowed discovery into

vindictive prosecution “given what I know at this point.” (R. 230). What the

trial court knew included “the time lines” and “the information that’s been

provided by the parties.” (R. 230). There was obviously a basis to make the

ruling, and no crafty bolding and italicizing (see the State’s brief on appeal) can

mask that. For example, the trial court’s statement that “this Court is not making

any ruling as of today that the State is pursuing this prosecution in retaliation for

the exercise of a protected right” is nothing more than a statement that the
12
motion hearing was not a Fields “sufficiency of the evidence” evidentiary motion

hearing to dismiss the case for vindictive prosecution. (Id.) Actually, this

statement supports our argument that the trial court had properly conducted a

Benson “colorable basis” hearing.

The State’s second argument, that this case does not “fit the genre” of

vindictive prosecution, also lacks merit. First of all, the entire argument assumes

facts the State must prove at trial, assumes guilt, assumes the State innocent of

vindictive prosecution, etc. More importantly, there are only three published

Illinois cases that discuss vindictive prosecution, People v. Derr, 346 Ill. App. 3d

823, 806 N.E.2d 237 (5th Dist. 2004), Fields, and People v. Hall, 311 Ill. App. 3d

905, 726 N.E.2d 213 (4th Dist. 1999), and none of them support the State.

Derr is a case about the State’s decision to pursue a first degree murder

charge after the defendant withdrew his Alford plea to involuntary

manslaughter. The case spanned almost three years, during which the State

produced evidence of a drunk victim whose fight with the defendant lead to a

blow to the face and cardiac arrest, a coroner’s report confirming the State’s

theory, eyewitnesses who could place the defendant with the victim, and the

defendant’s wife’s detailed report of how the defendant stole jewelry from the

victim’s body. Derr, 346 Ill. App. 3d. at 823-27. The State charged the defendant

with involuntary manslaughter and concealment of a homicidal death. Id. at 827.

The defendant’s counsel delayed trial for two years with continuances. Id. The

defendant then entered an Alford plea in exchange for the State’s promise to

drop the concealment charge. The day of sentencing, the defendant’s counsel

requested another continuance, claiming a dispute with the State as to whether,

as promised, the defendant’s punishment would be probation. Id. The trial court
13
granted the continuance and vacated the plea. Id. Just before trial, nearly three

years after the case began, the State motioned to amend its information to charge

the defendant with first degree murder on the theory that the victim died during

a forcible felony, when the defendant removed the victim’s jewelry. Id.

The defendant’s counsel claimed the new charge was vindictive – the

State’s way to punish the defendant for withdrawing his plea. The trial court

disagreed, and so did the Illinois Court of Appeals for the Fifth District:

Defense counsel did not raise the fact that none of the numerous
continuances obtained on the pending charges over the years had
tolled the speedy trial demand on charges that should have been
joined in the charging document from the prosecution's inception.
In other words, defense counsel failed to pursue the defendant's
speedy trial rights, a legal avenue that would have protected him
from the murder charge.

Id. In other words, the State could have brought the charge initially. What

prejudiced the defendant was not the State but defendant’s counsel.

In this case, there is no first charge that the State could have brought. The

State’s only charge is the unlawful use of a weapon charge. Unlike the evidence

in Derr supporting the charge, in this case the charge is tainted from the outset.

As argued at the motion hearing, this includes: the State’s conduct in this case in

coordination with the police departments from the day of the search warrant

execution, through the motions to retain Mr. Peterson’s property under his

constitutional rights; the FOID card revocation; the State’s refusals to supplement

discovery; and the State’s published remarks. The State builds its entire case on

“evidence” it has procured hand-in-hand with the police. Rather than support

the State, Derr warns courts to question the propriety of the State’s first charges.

In this case, the State’s charge against Mr. Peterson is vindictive.

14
 Fields is a case about the burden a defendant must sustain to obtain an

evidentiary hearing on vindictive prosecution and selective prosecution claims.

The defendant inmate committed aggravated battery against two corrections

officer. Fields, 322 Ill. App. 3d at 1030-32. Initially, the corrections department

reprimanded the defendant with one year’s lost time, one year’s segregation and

one year’s loss of good credit. Id. Three months later, the defendant and two

fellow inmates filed a class action lawsuit against the department. Id. Two weeks

after that, the department began to investigate the battery incident in more

detail. Id. After the investigation, the department sent a letter to the State

prosecutor recommending criminal charges. Id. The State did bring charges.

Pre-trial, the defendant’s counsel motioned for an evidentiary hearing and

for further discovery of vindictive prosecution and selective prosecution. Id. The

trial court held, and the Court of Appeals for the Fifth District agreed, that the

defendant failed to make a prima facie showing for either. The reason was, the

defendant failed to argue that the State had an improper motive for the charges.

Indeed, the defendant’s counsel specifically conceded “he [was] not alleging any

type of misconduct by the prosecutor.” Id. at 1032-33. Nor did counsel establish a

“sufficient nexus” between the department of corrections and the prosecutor –

counsel merely presented the letter and said the prosecutor never declined to

prosecute a department-referred case. Id. Therefore, the defendant “failed to set

forth a colorable basis that his prosecution was vindictive or selective.” Id.

In this case, there is a colorable basis that the State’s prosecution is

vindictive, as defense counsel set forth at the motion hearing. Unlike the

defendant in Fields, Mr. Peterson does not concede that the State has not

engaged in misconduct. The State has. The conduct includes, but is not limited
15
to: coordination with the police departments from the day of the search warrant

execution, through the motions to retain Mr. Peterson’s property under his

constitutional rights; refusals to supplement discovery; and published remarks

about this case, to name a few. Rather than help the State, Fields tells us that the

proper standard to apply is the “colorable basis” standard. In this case, Mr.

Peterson has set forth a colorable basis of vindictive prosecution.

Finally, Hall is a case about the presumption to apply to pretrial

prosecutorial decisions. The State charged the defendant with traffic offenses for

driving under the influence and improper lane use, but at the time of the offenses

the defendant was also arrested for criminal battery. Hall, 311 Ill. App. 3d at 906.

The night before trial, the prosecutor handling the traffic offenses called another

prosecutor to discuss an evidence defect. Id. at 907-09. The next morning, that

prosecutor and the defendant engaged in an argument about the defect. Id. That

afternoon, the prosecutor who “argued” charged the defendant with battery. Id.

The trial court presumed that the State engaged in vindictive prosecution.

Id. at 910-11. The Court of Appeals for the Fourth District held that the pretrial

presumption was error. The Court of Appeals remanded with these instructions:

When the presumption is not applicable a defendant in an

appropriate case might prove objectively that the prosecutor's
charging decision was motivated by a desire to punish him for
doing something that the law plainly allowed him to do . . . . [T]he
trial court [is] to make a determination as to whether actual
vindictiveness was shown based on objective proof, without any
presumption of vindictiveness in this pretrial setting.

Id. On remand, the defendant bears the burdens of production and persuasion at
the evidentiary hearing for vindictive prosecution.

16
 In this case, the trial court did not apply a presumption of vindictiveness –
we were not even at an evidentiary hearing. The motion was a motion for
discovery to investigate and prepare for a future evidentiary hearing. Therefore,
the State’s reliance on Hall, like Fields, is misplaced. Rather than help the State,
Hall holds that the proponent may prove with objective evidence obtained in
discovery that the State’s charging decision was vindictive before the trial court
can make any decision on the defense.
The State’s interpretation of the ruling on appeal is flawed for many other

reasons, too. First, the trial court specifically said it was not relying on the

timeline alone. (Thus, the State’s reliance on United States v. Falon, 347 F.3d 1000

(7th Cir. 2003), holding that charge timing alone is insufficient to justify discovery

into vindictive prosecution, is misplaced.) Second, the trial court did find enough

evidence to justify discovery that the State or an agency prevailing on the State

harbored animus toward Mr. Peterson, specifically saying, “[G]iven what I know

at this point, I am going to allow discovery on that particular issue.” (R. 231)

(Thus, the State’s reliance on Fields, holding that if an agency is the animus

source then the agency must “prevail on” the prosecution, is also misplaced.)

Finally, the trial court did not rule that the State is never entitled to wide

discretion in initiating and managing criminal litigation. (Thus, the State’s

lengthy ode to prosecutorial discretion and reliance on People ex rel. Carey v.

Cousins, 77 Ill. 2d. 531, 397 N.E. 2d 809 (1979), holding that prosecutors are

entitled to deference in charging decisions, is also misplaced).

The facts do tend to show that the State pursued Mr. Peterson because he

exercised his statutory or constitutional rights. In fact, the State argued at the

motion hearing that the State only charged and sought an indictment against

Mr. Peterson because he enforced his constitutional rights to have other property
17
from the October 2007 warrant execution returned. (R. 212). The State was

“concerned” that the February 2007 motion to request that the State return the

other property would include the Colt – even though, as the State now admits in

an about-face in its arguments on appeal, that Colt was specifically excepted

from the motion and the trial court’s order to return the property. The trial court

deferred ruling to November 20, 2008. That day, the trial court ruled:

As it relates to the issue of vindictive prosecution, this Court . . . has

reviewed the time lines, has reviewed the information that’s been provided
by the parties. Again, this Court is not making any ruling that they
[sic] can used as a defense, this Court is not making any ruling as of
today that the State is pursuing this prosecution in retaliation for
the exercise of a protected right, or that there is any animus by the
Prosecutors or by agencies of the prosecution that – that has been
established. But given what I know at this point, I am going to allow
discovery on that particular issue.

(R. 230-31) (emphases added).

Holding in Mr. Peterson’s favor is also good policy. Stripped of its lofty

statements about prosecutorial discretion, the State’s basic argument is: the

State’s pretrial decisions are never vindictive; the State is only guilty of

vindictive prosecution if there is a preexisting charge and the defendant has

exercised his rights to challenge that charge; and whatever the State does pretrial

is not evidence of vindictive prosecution. That makes no sense. To allow the State

to immunize itself with this bright-line rule is illogical – the ban on

vindictive prosecution is designed to prevent prosecutorial misconduct, not

encourage it pre-trial as this bright-line rule would.

The trial court did not abuse its discretion by dismissing this case. Given

the record and State’s admissions on appeal, this Court can affirm the dismissal

even if the trial court had. This Court should affirm.

18
 II.

THE TRIAL COURT WRONGLY DENIED DISCOVERY INTO

SELECTIVE PROSECUTION AND WRONGLY DENIED ITS USE AT TRIAL
BECAUSE DEFENDANT-APPELLEE/CROSS-APPELLANT ESTABLISHED A
COLORABLE BASIS, AT LEAST, THE DISCOVERY THRESHOLD

A. Standard of Review

The de novo standard applies to issues of law and the application of law

to uncontroverted facts. People v. Campobello, 348 Ill. App. 3d 619, 626, 810

N.E.2d 307 (2nd Dist. 2004) De novo review is plenary. Id.

The issue is whether the trial court should have determined there is a

colorable basis of selective prosecution to justify discovery from the State and,

regardless, whether the trial court erred in exceeding defense counsel’s motion

and denying use of selective prosecution at trial. These are issues of law or the

application of law to uncontroverted facts. Therefore, the standard of review is

de novo.

B. There is a Colorable Basis (at least) of Selective Prosecution

At the November 2008 motion hearing, defense counsel also requested

discovery from the State for a future selective prosecution hearing. Selective

prosecution means “the defendant (1) was singled out for prosecution while

other violators similarly situation were not prosecuted; and (2) the decision to

prosecute was based on an arbitrary classification such as race, religion, or the

exercise of constitutional rights.” Fields, 322 Ill. App. 3d at 1033. The defendant

need only present a “colorable basis” for selective prosecution to justify

discovery and “sufficient evidence” of selective prosecution to justify an

evidentiary hearing. Id. A “colorable basis” is “some evidence tending to show

the essential elements of the claim.” Benson, 941 F.2d at 611.

19
 At the outset, the Court should note that the trial court erred by

precluding the defense from arguing selective prosecution at trial. The trial court

concluded “it is the Defense burden at this time to show that, number one, their

client was singled out . . . and, number two, that the decision to prosecute was

based on some arbitrary classification . . . .” (R. 229-230). But the hearing was a

discovery hearing, not the Fields evidentiary hearing. The trial court applied the

wrong burden.

Discovery was justified because defense counsel presented evidence

tending to show the essential elements of the claim. The State selected

Mr. Peterson for this charge, leaving other similarly situated officers uncharged.

The only reason the State charged Mr. Peterson was because he exercised his

constitutional rights to be free from unreasonable search and seizure. After the

warrant execution, Mr. Peterson enforced his rights to possess property that the

State had no legal interest in. (C. 505-10) The State and the Illinois State Police

fought him. (Id.) The trial court ruled that the property, including the firearms

(but not the Colt), be returned (Id.; see also R. 2-7) Anticipating the ruling, the

Illinois State Police the same day revoked his FOID card, thereby preventing

execution of the trial court’s order. On May 13, 2008, defense counsel motioned

the trial court to modify its order so that the firearms could be transferred to

Stephen. (Id.) At an initial hearing, the trial court indicated that it tended to agree

that there was no reason to retain the property. (Id.) The same day as the hearing

to issue the ruling, however, the State filed its complaint. Chuck Pelkie, the

State’s spokesperson, publicly stated that State brought the charge only because

the State did not want an “illegal weapon put back out on the street.” (Id.; see

also R. 505-10) However, the Colt was not a subject of the motion (C.505-10)
20
 While the State does have discretion to charge for crimes, that discretion

cannot be exercised on the basis of an arbitrary classification. For example, in

People v. Kail, 150 Ill. App. 3d 75, 501 N.E.2d 979 (4th Dist. 1986), the

Court of Appeals for the Fourth District held that the State cannot charge a

suspected prostitute for failing to have a bicycle bell but not other violators. The

officer who arrested the defendant testified that but for the police department’s

policy to enforce the law against suspected prostitutes, and the officer’s

suspicions that the defendant was a prostitute, the officer would not have

arrested the defendant. Id. at 76-78. The Court of Appeals reversed the verdict

because no facts established a rational relationship between the class of

suspected prostitutes and the State’s interest in enforcing the law. Id. at 78.

In this case, there is no conceivable set of facts to justify the State’s

decision to enforce 720 ILCS 5/24-1(a)(7)(ii) only against Mr. Peterson. The

dearth of cases speaks for itself. For example, the State never charged officer

Stephen Peterson, who the indictment also names as possessing the Colt. If the

State is correct, he too violated the statute.

No police officers in Illinois have been indicted under this statute, and

counsel referenced officers who could testify that officers in the Bolingbrook

Police Department, Will County Sheriff’s Department and Illinois State Police

officers possess firearms with barrel lengths less than sixteen inches. Only

Mr. Peterson has been charged.

Therefore, if this Court reverses the trial court’s decision to dismiss this

case, then the Court should also reverse the trial court’s decisions to deny

discovery into selective prosecution and to deny the defense from arguing it at

trial – if not affirm the dismissal given the sufficient evidence of it.
21
 III.

THE TRIAL COURT SHOULD HAVE DISMISSED THIS CASE BECAUSE,

AS A QUALIFIED LAW ENFORCEMENT OFFICER AUTHORIZED TO
CARRY, AND THEREFORE POSSESS, AN “ILLEGAL” FIREARM,
DEFENDANT-APPELLEE/CROSS-APPELLANT IS IMMUNE FROM
LIABILITY UNDER THE LAW ENFORCEMENT OFFICER’S SAFETY ACT

A. Standard of Review

The de novo standard of review applies to issues of law and the

application of law to uncontroverted facts. Campobello, 348 Ill. App. at 626.

De novo review is plenary. Id.

The issue is whether the trial court properly interpreted the

Law Enforcement Officer’s Safety Act of 2004 to conclude that Mr. Peterson is not

immune from criminal charges under 720 ILCS 5/24-1(a)(7)(ii). This is an issue of

law or the application of law to uncontroverted facts. Therefore, the standard of

review is de novo.

B. LEOSA Preempts Criminal Charges Under 720 ILCS 5/24-1(A)(7)(ii)

Against Qualified Law Enforcement Officers Who Carry, and Therefore
Necessarily Possess, “Illegal” Firearms Shipped in Interstate Commerce

LEOSA is a subpart of the Gun Control Act, 18 U.S.C. §§ 921 – 930 (GCA),

which provides:

No provision of this chapter shall be construed as indicating an

intent on the part of Congress to occupy the field in which such
provision operates to the exclusion of the law of any State on the
same subject matter, unless there is a direct and positive conflict
between such provision and the law of the State so that the two cannot be
reconciled or consistently stand together.

18 U.S.C. § 927 (emphasis added). This “otherwise” provision is a hybrid

preemption statute in that some parts of the GCA do not preempt state law.

22
 As a subpart of the GCA, LEOSA’s immunity provision at issue in this

case, 18 U.S.C. § 926B(a), necessarily preempts state law. The immunity provision

states:

Notwithstanding any other provision of the law of any State or any

political subdivision thereof, an individual who is a qualified law
enforcement officer and who is carrying the identification required
by subsection (d) may carry a concealed firearm that has been
shipped or transported in interstate or foreign commerce, subject to
subsection (b).

Id. (emphasis added). This is express preemption.

LEOSA states that the police officer “may carry a concealed firearm.” It

does not use the term “carry on his person,” or “may carry a concealed

handgun,” or “may carry a concealed handgun on his person” or “may only

carry firearms legal under state law.” No matter how much the State wants

LEOSA to incorporate these phrases, the Court cannot without engaging in

wholesale judicial legislation and ignoring the words Congress chose to use.

The right to carry a firearm necessarily includes the right to possess the

firearm. At some point, the officer must take his firearm out – to use it, to clean it,

to qualify with it, etc. If that officer is immune from state criminal charges

carrying that firearm concealed, why not when he takes the firearm out to use it

to protect public, as he is sworn to do? And is that officer suddenly a criminal if

he takes the firearm off is person at night to sleep? Or if he sits down to clean it

on a break from work before putting it back on his person to head out for patrol?

No. Imagine the absurdity too if, as the State argues, states had the right to

charge that immune officer with illegal possession. Such a right would render

LEOSA meaningless.

23
 To the extent the Court believes it necessary to read beyond LEOSA’s clear

language, Congress’s intent is also clear: LESOA is to be applied broadly.

Congress expressed this intent overwhelmingly in the proceedings culminating

in the enactment of LEOSA. Moreover, the Supreme Court of the United States

has repeatedly confirmed Congress’s intent by interpreting federal gun control

laws broadly. See, e.g., Scarborough v. United States, 431 U.S. 563 (1997).

LEOSA is a subpart of the GCA. Congress enacted the GCA to protect

individuals from firearms related crimes. At first, Congress “explicitly

disavowed any intent to occupy the field of gun control to the exclusion of [S]tate

police powers.” Kreshesky v. Codd, 89 Misc. 2d 439, 441 (N.Y. Sup. 1976).

However, as the rise in firearm-related fatalities climbed, Congress amended the

GCA to preempt all contrary State laws. LEOSA became one of them.

The United States House of Representatives avowed two purposes of

enacting LEOSA. First, LEOSA was necessary to establish parity between sister

States. “[C]urrently,” the House of Representatives reported, “some States do not

permit a law enforcement officer from other States to carry a concealed weapon

within their borders. This legislation would allow current and retired police officers to

carry a concealed weapon in any of the 50 States,” regardless of whether the State is

also the officer’s domicile State. H.R. Rep. No. 108-560 at 3-4 (2003) (emphasis

added). The legislation was intended to apply broadly to all law enforcement

officers, regardless of on duty status or other State firearm carry requirements, so

long as the officer fell within LEOSA’s qualification provision. Id. at 54, 55.

Since September 11, 2001, Congress has acted vigorously to protect

national citizens from violence. Anti-terrorism legislation, the terrorism color-

coded alert system, and stringent airport security regulations are but a few
24
examples. LEOSA is among them. Even before LEOSA, freedom from State

restrains on firearm carry was essential to citizen safety, as the District Court for

the Western District of Michigan concluded in the following passage:

Ninety-five percent of all law enforcement officers killed in the line

of duty are victims of firearms[,] and one out of every four of these
is killed by a file or shotgun . . . The principal purposes of [Federal
gun control laws] are to aid in making it possible to keep firearms
out of the hands of those not legally entitled to possess them
because of age, criminal background or incompetency, and to assist
law enforcement authorities in the State and their subdivisions in
combating increasing prevalence of crime in the United States.

United States v. Reminga, 493 F. Supp. 1351, 1351-52 (W.D. Mich. 1980)

(emphasis added). Clearly, Congress intended the use of firearms in the GCA to

have broad reaching meaning. At the same time, Congress used LEOSA to

permit law enforcement officers to combat firearms with like firearms. Thus,

federal immunity. The immunity was essential for two reasons. One was to

assure law enforcement officers from moving across State lines that they would

not have to be concerned with whether their firearm was permissible under the

State’s laws. The other was to keep law enforcement officers from having to

repeal a gun fight on the beat with a knife. To say otherwise is to say the officer

enjoys immunity while he carries the otherwise illegal firearm in a concealed

fashion, but is a criminal the moment he takes it off.

Therefore, if this Court does reverse the trial court’s dismissal, then this

Court should also reverse the trial court and hold as a matter of law that LEOSA

immunizes Mr. Peterson from charges and this case must be dismissed.

25
 IV.

THE TRIAL COURT SHOULD HAVE ORDERED A CHANGE OF VENUE

BECAUSE REASONABLE GROUNDS TO BELIEVE PREJUDICE AND AN
INABILITY TO OBTAIN A FAIR TRIAL EXIST, INCLUDING THE
PERVASIVE PUBLICITY ABOUT THIS CASE AND THESE PARTIES AND
THE MISLEADING, PUBLISHED REMARKS FROM THE STATE

A. Standard of Review

A fair trial before a panel of impartial jurors is a federal and a state

constitutional right. As a federal constitutional right, the reviewing court must

determine whether the venue meets “the minimum guarantee of due process.”

Irvin v. Dowd, 336 U.S. 717 (1961). As a state constitutional right, the abuse of

discretion standard applies because trial court exercises its authority over

procedural aspects of a case. People v. Birger, 329 Ill. 352, 160 N.E. 564 (1928); In

re Estate of Wernick, 127 Ill. 2d at 77-78. An abuse of discretion is a ruling "made

without the employment of conscientious judgment" or one which "exceeded the

bounds of reason" Kaden, 263 Ill. App. 3d at 615, 635.

The issue is whether the trial court should have granted Mr. Peterson’s

motion to change venue. Therefore, the standard of review is abuse of discretion,

for the state right, and de novo, for the constitutional right.

B. There Were and Remain Reasonable Grounds to Believe Prejudice

Exists and Impairs the Right to a Fair and Impartial Trial

Under Illinois law, a defendant is entitled to a change of venue when there

are reasonable grounds to believe that the prejudice the defendant alleges

actually exists and that, by reason of the prejudice, the defendant cannot obtain a

fair and impartial trial. People v. Birger, 329 Ill. 352, 160 N.E. 564 (1928). The trial

court’s inquiry is not whether the facts alleged to support a claim of prejudice are

26
true but whether, if true, they raise a reasonable apprehension that the defendant

cannot receive a fair and impartial trial. Id.; See also People v. Coddington, 123 Ill.

App. 2d 351, 259 N.E.2d 382 (5th Dist. 1970); People v. Gendron, 41 Ill. 2d 351,

243 N.E.2d 208 (1968).

Illinois law also governs venue changes by statute. 725 ILCS 5/114-6

provides, in pertinent part, “A defendant may move the court for a change of

place of trial on the ground that there exists in the county in which the charge is

pending such prejudice against him on the part of the inhabitants that he cannot

receive a fair trial in such county.”

Pretrial publicity can support a motion to change venue. When alleged,

the deciding court must “turn . . . to any indications in the totality of

circumstances that [the defendant’s] trial [will not be] fundamentally fair.”

Murphy v. Florida, 421 U.S. 794, 799 (1975). It is important to examine whether

such publicity is “largely factual publicity,” as opposed to that material which is

“invidious or inflammatory.” Id. at 800. However, “prejudice is presumed where

pretrial publicity is so pervasive and inflammatory as to saturate the community

where the trial was held.” Rideau v. Louisiana , 373 U.S. 723, 726-27 (1963).

There are numerous examples of courts granting a defendant’s motion for

a change of venue on facts similar to the facts in this case – and, in some, with far

less egregious material to support the motion.

For example, in People v. Taylor, 101 Ill. 2d 377 (1984), the

Illinois Supreme Court held that venue for a criminal trial that had received

“extensive news coverage” in two area newspapers and radio talk shows should

have been changed. Sixty-one percent of the community could identify the

defendant, and posters around the community offered a reward for his turn in.
27
Media coverage in the community and the surrounding areas was

unprecedented. Coverage publicized the crime, the government’s investigation

progress, court proceedings, and voir dire. The newspapers also reported that

the defendant took a lie detector test. One paper went so far as to say the

defendant “did not pass” the test. Id. Others reported alleged confessions.

The defendant’s counsel motioned for a venue change, which the trial

court denied on the “belief” that the court could find unbiased jurors. Id. On

appeal, the Illinois Supreme Court held, “When it became apparent that, in view

of the details of the information that had been disseminated by extensive press

coverage, it would not be possible to find 12 jurors who were sufficiently

unfamiliar with the facts highlighted by the media to be able to reach a verdict

based solely on admissible evidence presented in the courtroom, the trial judge

was obliged to grant the defendant’s motion for change of venue.” Id. Once the

judge is aware that there has been intensive publicity which includes

dissemination of inadmissible and highly prejudicial information, the judge has

no choice but to inquire Id. at 394.

The pretrial publicity and apparent animosity toward Mr. Peterson in this

case is the same, if not worse.

Almost immediately after October 28, 2007, camera crews and media

began camping out in front of Mr. Peterson’s house, and soon thereafter roaming

the Courthouse steps. CNN, Fox, WGN, Chicago Tribune, and countless others,

regularly cover this story. Initially, coverage was hourly, then regularly on

televised morning talk shows and primetime news and legal talk shows.

Mr. Peterson’s arrest was so public that three helicopters and a crowd of news

reporters followed him on his way to surrender to the trial court’s arrest warrant.
28
A Google search of the name “Drew Peterson” yields 419,000 hits (at least),

including a webpage on Wikipedia, reports of a failed polygraph, allegations of

secretly monitored conversations, and at least two published books. A search on

CNN yields about 71 articles and 44 separate videos. A search of the

Chicago Tribune website yields over 1,100 hits. The Naperville Sun has covered the

case since October of 2007, and an author working for the Naperville Sun has

published a book about Mr. Peterson.

The government has been an active participant The State’s spokesperson

told news reporters that the reason why the charge was brought was because the

State did not want an “illegal weapon put back out on the street.” In July 2008,

persons allegedly working with the Illinois State Police went on the talk show

circuit to discuss their involvement in the investigation and disclosed to the

media alleged statements Mr. Peterson made. The Bolingbrook Police allowed a

former detective, and convicted felon, to broadcast coverage of Mr. Peterson

from the non-public parts of the police station on Fox News and On the Record.

The Taylor Court held on facts similar to these that the trial court was

obligated to change venue. In on facts similar to these that the trial court was

obligated to change venue. In Taylor, the prejudicial media coverage included

two local newspapers and some radio talk shows, a public opinion poll, a poster,

and some articles reporting lie detector test results and confessions. That

“extensive” coverage was sufficient under Illinois law to render venue impartial.

Here, the coverage is worse. No one can deny that CNN, Fox News and the host

of other media outlets, have covered this case and this defendant since at least

October 2007. No one can deny the Chicago Tribune and the Naperville Sun have

reported on this case regularly. The Naperville Sun has even published a book
29
about Mr. Peterson, featuring him on the cover connected to a lie detector

machine. Significant prejudicial information has been reported throughout the

nation, and Will County is no exception. These reports include hearsay and other

inadmissible evidence that is extremely prejudicial, including alleged

photographs of the firearm.

Undeniably, the overwhelming public opinion of Mr. Peterson was

throughout the pretrial hearings, at the time this case was scheduled for trial,

and remains, negative.

Therefore, if this Court does reverse the trial court’s dismissal, then this

Court should also reverse the trial court’s decision not to change venue under

Illinois law.

C. Trial in Will County Also Violates the Minimum Guarantees of

Due Process, an Impartial Jury Free From Outside Influences

Under federal law, the Sixth Amendment to the Constitution of the United

States guarantees the “criminally accused a fair trial by a panel of impartial,

‘indifferent’ jurors.” Irvin, 366 U.S. at 722 (1961). The failure to “accord an

accused a fair hearing violates even the minimal standards of due process.”

Appellate courts have the duty to make an independent evaluation of the

circumstances in determining whether the trial court has taken sufficient

measures to assure that the accused is tried by an impartial jury free from

outside influences. Sheppard v. Maxwell, 384 U.S. 222 (1966).

Again, there are numerous examples of courts granting a defendant’s

motion to change venue for due process on facts similar to the facts in this case.

Consider Sheppard v. Maxwell, 384 U.S. 222 (1966), as another example. In

Sheppard, the defendant was on trial for a highly scrutinized murder. The media

30
roamed the courthouse corridors, set up a press table outside the courtroom, and

sat just a few feet from the jury box; newsmen handled exhibits; the press

overheard and reported private conversations; and the commotion made it

difficult for jurors to hear. Id. The trial court denied the defendant’s motions to

change venue. The Supreme Court of the United States reversed, holding that

“the massive, pervasive and prejudicial publicity and disruptive influences” in

the case denied the defendant due process. Id.

In Irvin, as another example, a prisoner challenged his conviction on six

murders. The crimes were covered extensively, by news media in the locality,

and aroused great excitement throughout the county. The court granted the

defendant’s first motion to change venue, then denied the second, the third and

the fourth. The Supreme Court of the United States reversed, holding that the

reasonable apprehension that the defendant would not obtain a fair, impartial

trial was “clear and convincing” because, inter alia: a reading of the exhibits

attached to the motions indicate that a barrage of newspaper headlines, articles,

cartoons and pictures were unleashed against him during the six or seven

months preceding his trial; newspapers in which the stories appeared were

delivered to a majority of the community; there were extensive radio and

television newscasts; and the stories involved the defendant’s background.

As elaborated above, the publicity and animosity toward Mr. Peterson in

this case is the same, if not worse.

Therefore, if this Court does reverse the trial court’s dismissal, then this

Court should also reverse the trial court’s decision not to change venue.

31
 CONCLUSION

For the reasons set forth above, the Court should affirm the trial court's

November 22, 2008 order dismissing this case because the State refused to

comply with the trial court's discovery order. To the extent this Court will

reverse the trial court, the Court should also reverse the trial court's pretrial

decisions not to compel discovery from the State to support a selective

prosecution hearing, not to dismiss the case under LEOSA, and not to order a

change venue. The Court should not award the State any expenses for oral

argument, as requested, because the State initiated this appeal.

Respectfully submitted,

Andrew P. Abood (P43366) date

THE ABOOD LAW FIRM
246 East Saginaw Street, Suite One
East Lansing, Michigan 48823

For:
Joel Brodsky Andrew P. Abood (P43366)
BRODSKY & ODEH THE ABOOD LAW FIRM
8 South Michigan Avenue, Suite 3200 246 East Saginaw Street, Suite One
Chicago, Illinois 60603 East Lansing, Michigan 48823

32
 CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of Rules 341(a) and

(b). The length of this brief, excluding the pages containing the cover, statement

of points and authorities, the certificate of compliance, the certificate of service,

and those matters to be appended to the brief, is .3f2 pages.

ndrew P. Abood (P43366) date

THE ABOOD LAW FIRM
246 East Saginaw Street, Suite One
East Lansing, Michigan 48823

For:
Joel Brodsky Andrew P. Abood (P43366)
BRODSKY & ODEH THE ABOOD LA W FIRM
8 South Michigan Avenue, Suite 3200 246 East Saginaw Street, Suite One
Chicago, Illinois 60603 East Lansing, Michigan 48823

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