Pro Se Chicago's Weblog

November 25, 2014

How confirmatory bias taints the law – a must read for all attorneys


There is a concept in psychology and psychiatry termed confirmatory bias, which often adversely influences the judgment of officers, attorneys, judges, and juries, resulting in biased, unfair or unlawful arrests, decisions and convictions. It is the unfortunate human tendency for each individual to become part of a position, to hold that position regardless and to hear only that which supports that position, a phenomenon known as “confirmatory bias”. Dr. Richard Rappaport, a nationally renowned member of the American Academy of Psychiatry and the Law concluded in an editorial in a leading Journal for the American Academy of Psychiatry and the Law, in 2006, that AZ, a civil rights activist, had been abused by the courts and police due to this principle, when they falsely labeled her as psychotic and treated her as an escaped mental patient, disregarding everything she said, withholding medication needed for medical illnesses that threatened her life, and even beat her.[1] In the 2013 murder trial of David Camm, the defense argued that Camm was charged for the murders of his wife and two children solely because of confirmation bias within the investigation.[2] Confirmatory bias is pervasive in law. It is an area which is ripe for increased efforts to recognize it, as well as for legislation and rules that incorporate methods to reduce it.  To see the rest of this article click here: HOW CONFIRMATORY BIAS TAINTS THE LAW

[1] Editorial:  Losing Your Rights: Complications of Misdiagnosis,  written by Dr. Richard Rappaport, J Am Acad Psychiatry Law 34:436-8, 2006

[2] “David Camm Blog: Investigation under fire”. WDRB. October 10, 2013.

 

August 1, 2014

Federal Petiton proving corrupt judges, sheriff, & state’s attorney in Cook County


SIC color_edited-1

PLEASE come to court and show support for Shelton at the next court date on Jan 13, 2016, 10am, 2600 S California, Chicago IL, courtroom 506. Write letters to the U.S. Attorney, Sen. Durbin, Sen. Kirk, your senator, Rep. Lipinsky or your representative, and the press. Some addresses are at end of post. Spread the word through social media that Shelton needs public support to continue these blogs and fight unlawful attacks against her in retaliation for them and for helping so many with pro se litigation and defense.

This is a petition for writ of habeas corpus to the federal district court in Chicago. The Cook County Sheriff in retaliation for Shelton filing civil rights suits has been falsely arresting Shelton repeatedly and maliciously prosecuting her for battery to officers. Of NOTE: She is never charged with battering anyone else and has a lifelong history of non-violent pacifism.  For more information go here.  Also read Shelton’s other blogs: http://cookcountyjudges.wordpress.com  http://chicagofbi.wordpress.com   http://cookcountysheriffdeputies.wordpress.com   http://illinoiscorruption.blogspot.com and search them for posts about Madigan in particular. They have beaten her so many times and so viciously that she now has post-traumatic-stress disorder and when aggressively approached by officers goes into a flashback where she cries, screams, tries to protect herself from imagined blows swinging her arms randomly (as she is reliving attacks) and cowers. If she is pushed, carried, or dragged, due to disabilities and severe balance problems she grabs at things to steady herself – all the while being out of touch with reality during these brief PTSD flashbacks. She has been arrested and charged with FELONY battery to an officer with a possible sentence of 3-14 years for “touching an officers ear and pulling her hair until her hand slipped off”. She has been held in jail one year on no bail and only recently released on $300,000 bail. This is unconstitutional excessive bail She has been denied notice, counsel of choice, discovery of evidence, and has been fraudulently accussed of being psychotic and unfit for trial, illegally without notice or jury trial, without any professional saying she was psychotic or unfit, sent to a secure mental health facility who after a few months said in court she was never unfit and is not psychotic and sent her back to jail. As a result of this lawlessness Shelton has now filed at Petition for Writ of Habeas Corpus to the Federal District Court asking for relief and presentment of the criminal conduct of judges, sheriff staff, state’s attorney, court clerk, and other corrupt persons to the U.S. Attorney for  prosecution. You can read it here: (download will be 24 pages) fed habeas 6-12-14 final Full Petition with evidence (download will be 400+ pages) Habeas Petition Asst. US Attorney Zachary T. Fardon United States Attorney’s Office Northern District of Illinois, Eastern Division 219 S. Dearborn St., 5th Floor Chicago, IL 60604 Phone: (312) 353-5300 ______________________ FBI,Special Agent in Charge – Chicago Robert J. Holley 2111 W. Roosevelt Road Chicago, IL 60608 Phone: (312) 421-6700 Fax: (312) 829-5732/38 E-mail: Chicago@ic.fbi.gov _________________________ Senator Durbin WASHINGTON, D.C. 711 Hart Senate Bldg. Washington, DC 20510 9 am to 6 pm ET (202) 224-2152 – phone (202) 228-0400 – fax ____________________ Senator Kirk Washington, DC 524 Hart Senate Office Building Washington DC, 20510 Phone: 202-224-2854 Fax: 202-228-4611 ___________________ Congressman Lipinsky Washington, D.C. Office 1717 Longworth HOB Washington, DC 20515 P (202) 225 – 5701 P (866) 822 – 5701 F (202) 225 – 1012

June 17, 2014

Offers of Proof – Preserving barred evidence & testimony for appeal


OFFERS OF PROOF

These are used to preserve evidence or testimony for the record when the court bars its introduction during the trial or during an evidentiary hearing. During a trial, if an offer of proof is formally made, the jury will be excluded and the witness is put on the stand so that the testimony will be on the transcript or the attorney/pro se counsel may put the evidence on the record or state what they expect a witness would have said in detail, just to get it on the record for purposes of appeal.  Anything not on the record cannot be considered for appeal.  If the judge won’t let you do this, you can file an offer of proof with an attached affidavit as to what the witness would have said or attached evidentiary document. This memorandum explains offers of proof a little more clearly. Everything I write uses Illinois and federal case law. 

MEMORADUM OF LAW – OFFERS OF PROOF

NOW COMES, Linda Shelton who respectfully presents to the court this memorandum of law.

  1. The refusal to allow an offer of proof in a trial denies due process and is reason for overturning the verdict. Every defendant has a Sixth Amendment right to present a defense. People v. Manion, 67 Ill.2d 564, 10 Ill.Dec. 547, 367  N.E.2d 1313 (1977) It is a fundamental error to deny the right to present a defense that requires the verdict be overturned. (Ibid)  Refusing to allow a person to place an offer of proof on the record, de facto denies defendant the right to present a defense.
  2. “When a party claims she has not been given the opportunity to prove her case because the trial court improperly barred certain evidence, she “must provide [the] reviewing court with an adequate offer of proof as to what the excluded evidence would have been.” In re Estate of Romanowski, 329 Ill. App. 3d 769, 773, 771 N.E.2d 966, 970 (2002). An offer of proof serves two primary functions: (1) it discloses to the trial court and opposing counsel the nature of the offered evidence, thus enabling the court to take appropriate action, and (2) it provides the reviewing court with an adequate record to determine whether the trial court’s action was erroneous. People v. Thompkins, 181 Ill. 2d 1, 10, 690 N.E.2d 984, 989 (1998).
  3. The traditional way of making an offer of proof is the “formal” offer, in which counsel offers the proposed evidence or testimony by placing a witness on the stand, outside the jury’s presence, and asking him questions to elicit with particularity what the witness would testify to if permitted to do so. People v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785, 794 (2002); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §103.7, at 22 (8th ed. 2004).
  4. In lieu of a formal offer of proof, counsel may ask the trial court for permission to make representations regarding the proffered testimony. If counsel so requests, the court may–within its discretion–allow counsel to make such an informal offer of proof.
  5. A trial court may deem an informal offer of proof sufficient if counsel informs the court, with particularity, (1) what the offered evidence is or what the expected testimony will be, (2) by whom it will be presented, and (3) its purpose. Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill. App. 3d 444, 451, 818 N.E.2d 713, 719 (2004). However, an informal offer is inadequate if counsel (1) “merely summarizes the witness’ testimony in a conclusory manner” (Snelson v. Kamm, 204 Ill. 2d 1, 23, 787 N.E.2d 796, 808 (2003)) or (2) offers unsupported speculation as to what the witness would say (People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126, 1132 (1992)). In deciding whether to permit an informal offer of proof, the court should ask itself the following questions: (1) Are counsel’s representations accurate and complete? and (2) Would a better record be made by requiring counsel to make a formal offer of proof, even though doing so might be inconvenient and require more time?
  6. In addition, before deciding whether to accept counsel’s representations in lieu of a formal offer, the trial court should ask opposing counsel if he objects to proceeding in that fashion, even though counsel’s response in no way limits the court in exercising its discretion on this matter. If opposing counsel concedes the sufficiency of the offer or has no objection to proceeding by counsel’s representations, then opposing counsel’s client may not later challenge the court’s decision to proceed by counsel’s representations, rather than a formal offer. See In re Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283, 287 (2004) (“Simply stated, a party cannot complain of error which that party induced the court to make or to which that party consented”); In re Marriage of Sobol, 342 Ill. App. 3d 623, 630, 796 N.E.2d 183, 188 (2003) (a party forfeits the right to complain of an alleged error when to do so is inconsistent with the position the party took in the trial court).
  7. We emphasize that a trial court is never required to settle for less than a formal offer of proof, whatever the positions of the parties at trial may be. Whether to do so is left entirely to the court’s discretion. Thus, if the trial court is not satisfied that counsel’s representations alone are sufficient, the court may require counsel to place his witnesses on the stand and make a formal offer of proof.”  Miller v. Miller, 2004 Ill. App. 4th Dist.

 

QUOTED FROM ILLINOIS INSTITUTE FOR CONTINUING LEGAL EDUCATION  9 — 35

EVIDENTIARY MOTIONS AT TRIAL §9.48

 

 

  1. “Offers of proof are technically not evidentiary motions but rather serve as a sort of narrative insurance policy for appeal. Offers of proof are designed to preserve the record and guarantee that testimony that is not allowed is at least previewed for the appellate court. The purpose of offers of proof is discussed in Lagestee v. Days Inn Management Co., 303 Ill.App.3d 935, 709 N.E.2d 270, 237 Ill.Dec. 284 (1st Dist. 1999). Lagestee followed previous holdings that offers of proof are made to disclose to opposing counsel and the trial court the substance of excluded evidence and to enable the reviewing court to determine whether the trial court committed error thereon. It should be noted that unlike most of the motions made at trial, a motion to make an offer of proof is not subject to the discretion of the court. It has been held in People v. Richmond, 201 Ill.App.3d 130, 559 N.E.2d 302, 147 Ill.Dec. 302 (4th Dist. 1990), that trial courts are required to permit counsel to make offers of proof. Refusal to permit an offer may constitute error. However, refusal of an offer is not error if the suggested testimony is not relevant.

 

  1. Because offers of proof are essential to make and preserve a viable record, the offers should be as accurate as possible. In Snelson v. Kamm, 319 Ill.App.3d 116, 745 N.E.2d 128, 253 Ill.Dec. 354 (4th Dist. 2001), aff’d in part, rev’d in part, 204 Ill.2d 1 (2003), an offer was held adequate if it informed the court of the particular answer that would have been given. Note that Snelson also holds that a summary or synopsis will not suffice. The offer must be as accurate as possible.

 

  1. To insure that the offer is as accurate as possible, the author would urge that counsel write out, or at least loosely outline, the offer in advance so that it can be read carefully into the record. Obviously, the offer cannot always be written out; but in most instances, the opponent’s objection and the court’s possible denial can be anticipated. A written statement or an outline helps to ensure that all necessary evidentiary elements are included and clearly and artfully set forth. If the need for an offer has not been anticipated, counsel may ask the court’s indulgence for a short break to gather his or her thoughts and compose or outline the offer. If the evidence has been excluded during the testimony of a witness, the questions and proposed answers should be set so as to show the reviewing court what has been excluded. The traditional or classic method of making the offer involves posing the question and eliciting the answers from the witness. The alternative to the questions-and-answers format is for counsel to read the offer into the record. Presenting an offer of proof by orally reciting the substance of the expected testimony was specifically approved in Wright v. Stokes, 167 Ill.App.3d 887, 522 N.E.2d 308 (5th Dist. 1988). Although it runs counter to the conventional method of putting the witness on the stand, the narrative by counsel is the most effective and safest method. The narrative avoids an inarticulate or nervous witness who is very likely to be shocked and concerned by the exclusion of his or her testimony, insures that the testimony is on point, and should provide the optimum voice in setting forth the reasons why the evidence has been improperly excluded. An offer read into the record by counsel is generally more orderly and better understood.

 

  1. In making the offer, specificity is the goal. Conclusory or summary statements as to what the testimony or evidence would have shown will not preserve the record. Snelson, supra. Any offer of proof should be made out of the presence of the jury, and it is suggested that at the close of the offer counsel renew the request that the testimony be allowed into evidence. Restatement of the request gives continuity to the record, ties up loose ends, and ensures that the offer and the ruling of the court are tied together and understood by the reviewing court.

 

  1. Various texts and cases reflect a further relaxation in the method of making an offer and go as far as to suggest that it is not needed at all when the court clearly understands the objection and the nature of the evidence being offered. See People v. Foster, 81 Ill.App.3d 915, 401 N.E.2d 1221, 37 Ill.Dec. 128 (1st Dist. 1980). Notwithstanding Foster, it is strongly suggested that the offer of proof be made outside the presence of the jury in a formal manner whenever testimony has been circumscribed in whole or in part.

 

  1. From a purely practical standpoint, there is generally little likelihood that the offer of proof will have an immediate impact on the trial court. The fact that the offer is being made is indicative of the trial court’s position. The offer is primarily directed toward compiling and preserving an accurate record for appeal. Since the offer entails the refusal of testimony during the case in chief, it properly should be viewed as a very serious motion deserving careful attention.

 

  1. Thus, the offer of proof satisfies two critical needs in preserving the record on appeal: it demonstrates (1) that an error has been committed in excluding evidence and (2) that that error was harmful to the presentation of counsel’s case in chief. The author believes that the only way the above defects can be lucidly conveyed to an appellate court is through a disciplined, formal recitation on the record, as in the following sample: Your Honor, at this time I would like to make an offer of proof in connection with the testimony of [witness]. [Witness], if allowed to testify under oath in these proceedings, would testify as follows: [foundation establishing background and competency, and then a specific narrative of the substantive testimony that would have been adduced.]

 

  1. Again, the offer of proof should be as specific as possible, at all times avoiding summaries or vague conclusions.” [emphasis added]

 

Dated: April 29, 2014

Respectfully submitted,

 

 

Linda L. Shelton

Pro Se Defendant

 

December 19, 2012

Discovery in misdemeanor cases in Illinois


Discovery in misdeemanor cases in Illinois do NOT follow the Illinois Supreme Court Rules on discovery which only apply to felony cases.

The rules in misdemeanor cases are described in a case called People v. Schmidt, 56 Ill.2d 572 (1974). They required the states attorney to give the defense a 1) witness list, 2) copy of confessions, and 3) any exculpatory evidence (evidence that proves the defendant or suggests the defendant is not guilty).

The defendant is NOT obliged to provide the state anything including witness lists in misdemeanor discovery.  The defendant’s witnesses can decide to refuse to speak to the state’s attorney’s investigators.

There are exceptions, but the state or defendant must ask for additional discovery by motion and have a hearing before the court about this issue.

The only change in the law was in a case called People v. Kladis,  2011 IL 110920 ¶ 23, 355 Ill.Dec. 933, 960 N.E.2d 1104    [#110920, 2011 IL 110920, 2011 Ill. Lexis 2236, 2011 IL 110920] where the court ruled that the state must also provide videos from police cars capturing the incident in discovery.

See this page describing all this in more detail.

https://prosechicago.wordpress.com/criminal-defense-procedures-in-misdemeanor-court/

June 10, 2009

Sample Appeal of Wrongful Conviction


I have now filed my Illinois Appellate Court appeal of my wrongful conviction for aggravated battery of a correctional officer. Sgt. Anthony Salemi had attacked me, falsified his records, committed perjury, and with the help of Nifong-like prosecutorial misconduct of ASAs Andrew Dalkin and John Maher and extreme judicial misconduct by Judge Joseph Kazmierski, I was convicted and sentenced to two years in the Illinois Dept. of Corrections plus one year of mandatory supervised release.

I served the minimum 6 months and the full supervised release and was not able to appeal due to illegal conduct of staff at the Cook County Dept. of Corrections and Illinois Dept. of Corrections where I was held and due to damage to my health requiring several hospitalizations within the last year since my release on March 27, 2008 from prison. The damage to my health was a result of torture at the CCDOC and IDOC by ignorant, sociopathic, poorly trained officers and incompetent medical staff (with the exception of Dr. Baker). The social workers even told me they purposely were told not to allow me to use the law library. My medications were withheld in illegal acts of willful indifference to medical needs.

I have informed the FBI and asked them to prosecute for felony conspiracy to violate rights under color of law, etc.

I will never forget the comment to me at CCDOC by Sgt. Molevetti “We got you on one made charge so I can write anything I want and get you on another.” Officer Levy said the same thing. It appears that falsification of records is common practice at CCDOC. We need to take him down and jail him too!

As soon as I win this one, the mother of all civil rights suits will be filed against these creeps. Any officer who has aided and abetted this wrongful conviction is a target in my book to be arrested, removed as an officer, and jailed for felony conspiracy to violate rights under color of law under federal law.

I strongly suggest that ANY officer or CCDOC staff who has knowledge about this wrongful conviction march over to the FBI on Roosevelt Road, ask for a duty agent and confess and turn in the corupt officers and sergeants. The time is NOW to clean up the CCDOC and get rid of decayed and dead wood! If you don’t turn them in, you are part of the corruption and are condoning it! I have no sympathy for you!

You can read my appeal and the evidence of innocence and Sgt. Salemi’s guilt along with the incomptence of Inv. Sofus, as well as the prosecutorial misconduct at: Appeal-of-Wrongful-Conviction-Battery-Shelton-Illinois-2009

Note that the appeal exceeds the 50 pages allowed by the Appellate Court. I have written a motion for leave to file this 82 page appeal due to the extreme prosecutorial and judicial misconduct resulting in 18 different issues justifying appeal and overturning verdict.

Note that the appendix has case law on spoilation of or failure to produce critical evidence, self-representation, and insufficient indictments – all what I have already posted on this site elsewhere.

November 18, 2008

Dismissal due to Discovery Violations


DISMISSAL DUE TO DISCOVERY VIOLATIONS/DUE PROCESS GROUNDS

 

The duties to disclose and preserve impeachment/exculpatory evidence are grounded in the due process right to a fair trial. Kyles v. Whitley, 514 U.S. 419, 434 (1995); United States v. Bagley, 473 U.S. 667, 678 (1985); United States v. Agurs, 427 U.S. 97, 104 (1976); Brady v. Maryland, 373 U.S. 83 at 87 (1963) . Thus, the withholding or destruction of evidence violates a criminal defendant’s constitutional rights only if, as a result of the withholding or destruction of evidence the criminal defendant is denied a fair trial. Bagley, 473 U.S. at 678.

In People v. Walker, 257 Ill.App.3d 332, 628 N.E.2d 971 (1st Dist. 3d Div.
 1993) the court found that: “When police destroy material evidence, defendant’s clothing where he was  claiming misidentification … defendant’s due process rights violated and not an abuse of judicial discretion to dismiss the indictment.”

In People v. Madison, 264 Ill.App. 481, 637 N.E.2d 1074 (1st Dist., 4th Div.
 1994) the court found that: “Police destruction of evidence, heroin prior to trial, requires dismissal.”

            In Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), the court held that police did not deny the defendant due process by inadvertently destroying evidence that might have aided him.

      In People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004) the court

discussed bad faith and its relationship to destruction of evidence and the issue of whether the evidence had only speculative value or was essential to the case.

“We have applied Newberry to uphold dismissals on due process grounds where the State destroyed evidence that was essential or outcome determinative. In People v. Crowder, 323 Ill. App. 3d 710, 753 N.E.2d 1165, 257 Ill. Dec. 539 (2001), the defendant was charged with two weapons offenses. After receiving a discovery request for the gun on which the charges were based, the State lost the gun. The trial court dismissed the charges. We affirmed, observing that the key issue was whether the gun was actually a firearm and not, e.g., a toy or inoperable replica. Crowder, 323 Ill. App. 3d at 712. Thus, the gun was essential to the case, and the defendant had no realistic hope of exonerating himself unless his experts could examine it. Crowder, 323 Ill. App. 3d at 712; see also People v. Coleman, 307 Ill. App. 3d 930, 934, 718 N.E.2d 1074, 241 Ill. Dec. 220 (1999) (dismissal proper after State inadvertently lost or destroyed alleged controlled substance that defendant had sought in discovery [in a timely fashion, even in the absence of bad faith].” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

“The court distinguished Arizona v. Youngblood, 488 U.S. 51, 102 L. Ed. 2d 281, 109 S. Ct. 333 (1988), which held that police did not deny the defendant due process by inadvertently destroying evidence that might have aided him. The Newberry court observed first that, in Youngblood, the Court required a showing of bad faith because the evidence that was destroyed had no more than speculative value to either the State or the defendant. Newberry, 166 Ill. 2d at 315; see Youngblood, 488 U.S. at 58, 102 L. Ed. 2d at 289, 109 S. Ct. at 337. The court observed second that in the case before it, unlike in Youngblood, the evidence was destroyed after the defendant had requested it in discovery. Thus, the State had been on notice that it needed to preserve the evidence. Newberry, 166 Ill. 2d at 317.”  People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

“[I]n Newberry, the police seized what appeared to be cocaine from the defendant. After the substance tested negative, the defendant was charged with possessing a look-alike substance. However, a second drug test was positive. The State then indicted the defendant for possessing cocaine and several closely related offenses and dismissed the look-alike substance charge. After the defendant filed a general discovery request, he learned that the police had mistakenly destroyed the alleged cocaine. On the defendant’s motion, the trial court dismissed the indictments. Newberry, 166 Ill. 2d at 312-13.

The supreme court affirmed the trial court’s decision. The court held that, even absent bad faith, trying the defendant would deny him due process because the destroyed evidence was “essential to and determinative of the outcome of the case.” Newberry, 166 Ill. 2d at 315. That was because the defendant could not be convicted of the possession charges without proof of the content of the substance and, conversely, could not hope to exonerate himself without a chance to have his own experts examine the substance. Newberry, 166 Ill. 2d at 315.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

“Aside from relying on due process, the supreme court upheld the dismissal of the charge as a proper sanction for the State’s discovery violation. …[U]nder Ill. Sup. Ct. R. 415(g)(i), a trial court may impose appropriate sanctions where the State fails to meet its discovery obligations, even absent bad faith. Newberry, 166 Ill. 2d at 317-18. Because the evidence that was destroyed was “pivotal,  the court held that the trial court did not abuse its discretion in dismissing the charge. Newberry, 166 Ill. 2d at 318.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

            Courts have ruled that if the police destroy evidence, “even absent bad faith” that is “essential and determinative of the outcome of the case” then the Defendant would be denied due process, as the defendant “could not hope to exonerate himself without a chance to have his own experts examine the substance [evidence forming basis of case].”  People v. Camp, 352 Ill. App. 3d 257, 261, 815 N.E.2d 980, 984 (2d Dist. 2004)

The court in Camp (id.) reasoned that if the charges were dependent on the destroyed evidence then the defendant would be deprived of due process if convicted. Therefore, they concluded that the case must be dismissed under such circumstances.

The trial court in Camp (id.) suggested that when the destroyed evidence is not essential or outcome determinative, the court has the power to impose lesser sanctions than dismissal.

“[T]he court could impose a sanction short of dismissal, such as instructing the jury that it could “take the disappearance of evidence in a manner disadvantageous to the prosecution.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

 

 “This is primarily a question for the trial court, which has broad discretion to impose sanctions that are proportionate to the magnitude of the discovery violation. Newberry, 166 Ill. 2d at 317-18; People v. Koutsakis, 255 Ill. App. 3d 306, 314, 627 N.E.2d 388, 194 Ill. Dec. 272 (1993)…. [T]he trial court may consider a variety of less drastic options [than dismissal]. These include instructing the jury that the absence of the videotape requires an inference that the tape’s contents are favorable to defendant. See Thorne v. Department of Public Safety, 774 P.2d 1326, 1331-32 (Alaska 1989) (imposing similar remedy on remand to hearing officer in DUI case). On remand, the trial court is to consider the appropriate sanction under Rule 415(g)(i) for the State’s discovery violation.” People v. Camp, 352 Ill. App. 3d 257, 815 N.E.2d 980 (2d Dist. 2004)

October 31, 2008

Legally Insufficient Indictment-Failure to State Specific Means by Which Alleged Crime Accomplished – Illinois / Felonious Conduct of Judge Pantle and Judge Alonso in Obstructing Justice by Denying Defense Access to Evidence


The first thing I do if I am indicted or charged is look at the charging instrument – complaint, information, or indictment. I ask does it include all the elements of the alleged crime? If not, it is legally insufficient and voids the charge and case. There are other reasons it may be insufficient and I will discuss that in later posts. The motion in this post goes over the relevant controlling case law. Please enjoy it! I hope you find it useful. This is my motion in one case where the indictment is constitutionally legally insufficient basically because it fails to state the SPECIFIC MEANS of the alleged crime – in this case the specific allegedly fraudulent invoices, naming the specific dates of service, name of patient, service billed for, provider of the service, provider who is billing, and WHAT SPECIFICALLY is fraudulent about the invoice. It also states there is a “single intention or design” (i.e. scheme) but gives NO CLUE as to what the scheme involves or who are the alleged perpetrators other than me. The US Supreme Court as well as higher courts in Illinois have ruled in similar cases that this is a void indictment and therefore the entire case is void, not just voidable.
This is a case where in 2004 I was charged with felony Medicaid fraud by the Illinois Attorney General with a fraudulent grand jury indictment by an illegally impaneled special grand jury. The trial is still pending. If you want to attend, please e-mail me and I will inform you of the date when scheduled. Contributions to my legal defense fund may also be given to my attorney – made out to: “Shelton Legal Defense Fund” C/O J. Nicolas Albukerk, 3025 W 26th St., Chicago, IL 60623. The IL AG has absolutely no legal authority to indict anyone (with the exception of about six crimes specified by statute giving AG authority) without the invitation, review, and at least minimal participation of the State’s Attorney. This never happened in mycase. The law was mistated to the grand jury, only perjured testimony was given to grand jury, extensive exculpatory evidence was withheld from grand jury. No crime is actually alleged in indictment as act is specifically authorized by the Federal Medicaid Act if one guesses that the alleged crime is billing Medicaid for services of employees who are statutorily qualified to provide services – i.e. psychologists and counselors. I will post all the other motions to dismiss that the court has illegally refused to hear later.
UPDATE: I tried to file this pro se. It is still my position that I am being illegally denied the right to self-representation – more on this later. My attorney is considering adopting this motion and filing it under his name. In the meantime, Judge Alonso refused to hear it because it did not come from my attorney, who is now representing me over my objection. I did this not because he is a bad attorney, he is very good, but I believe at this point I need to represent myself – more on this later. The judge allowed this motion to be filed as an offer of proof only.

 

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, CRIMINAL DIVISION

 

PEOPLE OF THE STATE OF ILLINOIS       )

                        Plaintiff,                                    )          

                        v.                                             )           No. 04 CR 17571

                                                                        )

LINDA SHELTON                                         )           Jorge Alonso

            Defendant                                 )           Judge Presiding

 

 

MOTION TO DISMISS FOR INSUFFICIENT INDICTMENT OR IN THE ALTERNATIVE AN OFFER OF PROOF

 

NOW COMES Defendant, Linda Shelton, Pro Se, who respectfully moves this court to dismiss case due to insufficiency of indictment, or in the alternative offer this motion as an offer of proof that the indictment is insufficient and therefore the case is void ab initio. In support of this motion Defendant states as follows:

1.      In Illinois, an indictment must be reasonably certain enough to apprise a defendant of the charges against him, enable him to prepare a defense, and permit a conviction or acquittal to serve as a bar to any subsequent prosecution for the same offense. People v. Greico, 255 N.E.2d 897, 898-899 (Ill. 1970)

2.      A defendant has a fundamental right to be informed of the “nature and cause” of the charges against him or her. People v. Meyers, 158 Ill. 2d 46, 51 (1994).

3.      In Illinois this fundamental right is given substance by statute and incorporated into section 111-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/111–3 (West 1998)). 725 ILCS 5/111‑3 states: “111‑3. Form of charge. (a) A charge shall be in writing and allege the commission of an offense by: . . . . (3) Setting forth the nature and elements of the offense charged;” [emphasis added] See Meyers, 158 Ill. 2d at 51; People v. Davis, 281 Ill. App. 3d 984, 987 (1996). When the sufficiency of a charging instrument is challenged in a pretrial motion, the inquiry upon review is whether the instrument strictly complies with section 111–3. Davis, 281 Ill. App. 3d at 987.

4.      When the language of a statute which constitutes a charge against the defendant defines the acts prohibited, no further particularity is necessary. People v. Kamsler, 214 N.E.2d 562, 566 (Ill. 1966)

5.      An indictment is not flawed because the overt act could be described in greater detail. City of Chicago v. Powell, 735 N.E.2d 119, 125 (Ill.App.1st Dist, 2000) CITING People v. Meyers, 630 N.E.2d 811 (Ill. 1994). Rather an indictment is sufficient so long that it would enable a defendant to prepare a defense. Id.

6.      Ordinarily, the requirements of section 111-3 are met when the counts of a complaint follow the statutory language in setting out the nature and elements of an offense. Davis, 281 Ill. App. 3d at 987. The relevant inquiry is not whether a charging instrument could have described an offense with more particularity, but whether there is sufficient particularity to allow the defendant to prepare a defense. Meyers, 158 Ill. 2d at 54. A charging instrument is a preliminary pleading, and it need not contain more than a cursory statement of the facts. People v. Smith, 259 Ill. App. 3d at 497. However, it must state some facts.

7.      If the charging instrument meets the minimum requirements of section 111–3(a) but (combined with any discovery the State furnishes) is insufficient to allow the defendant to prepare a defense, he or she can–and should–seek a bill of particulars. Smith, 259 Ill. App. 3d at 498; People v. Intercoastal Realty, Inc., 148 Ill. App. 3d 964, 971 (1986).

8.      An indictment need not state the exact means used in committing a charged offense if that means is not an integral part of the offense. Grieco, 255 N.E.2d 899; SEE People v. Brogan, 816 N.E.2d 643, 654 (Ill.App.1st, 2004) (defendant’s argument that the indictment failed to apprise him of the details of how the overt act was carried out failed because the argument focused on the nature of the proof rather than the nature of the offense.) However, if the means is an integral part of the offense, the indictment needs to state these means.

9.      When the language of a statute does not articulate a specific offense, the indictment must articulate a specific overt act. People v. Potter, 125 N.E.2d 510 (Ill. 1995) In Potter, the defendant was charged with reckless driving. The indictment specifically stated that the defendant drove recklessly by speeding. The defendant was therefore not left to question whether the reckless conduct was running a red light, driving at night without his lights on, or one of a myriad of other possibly dangerous driving manners. However, there are numerous cases where the reviewing courts ruled that the indictment did not articulate a specific overt act[1], and therefore, these indictments were fatally defective.

10.  In the case at bar, the indictment states defendant is alleged to have “in furtherance of a single intention and design, … by means of false statements and representations, . . . caused false billing invoices to be submitted to the Illinois Department of Public Aid.”

11.  The indictment does NOT SPECIFY any details of this “single intention and design” so the Defendant cannot prepare a defense because she must guess at what kind of scheme and with whom she schemed in order to commit the alleged crime. As she is innocent, she has no knowledge of any scheme to which to prepare a defense.

12.  The indictment does NOT SPECIFY what false statements or what false representations she is accused of having made. She cannot prepare a defense and is forced to guess that the false statements have something to do with the large amount of different types of information on an invoice (Exhibit A), such as patient name, patient Medicaid number, date of service, type of service, diagnosis, or provider name.

13.  Defendant must also guess at which step is fraudulent in a complicated series of steps necessary to submit an invoice, from agreeing to work for the business, to signing the contract with the billing agent, to giving a patient encounter form to the business assistant when a patient is seen in clinic, to the billing agent setting up the business for electronic submission and registering the business and provider for billing, to signing a power of attorney form, electronic partner trading agreement, and alternate payee form, in order to generate an electronic invoice from the patient encounter form, to submitting the invoice over the wire, and to documenting hours worked on chart review and teaching therapist or setting medical policies.

14.  She further has to guess which dates of service for which of thousands of patient’s names in remittance advices given to her in discovery by the state, for the large time period of the indictment, June 2000 through April 2002, are involved so she can examine each of these invoices and guess at what is allegedly fraudulent about them.

15.  The above involves pulling out each of the thousands of charts in storage, examining each date of service record and comparing them with the invoices, after obtaining access to medical charts not under her control or possession until June 2008. It also involves examining all business and bank records related to billing and payroll, after obtaining access to them, as they were not under her control or possession until June 2008.

16.  As Defendant was not owner of the practice and did not have access to these documents after she left the practice in 2003, until June 2008, when she received Power of Attorney over all documents of the practice, at the request of XXXX, the owner, who is now medically incapacitated and dying of XXXXXX, Defendant is supposed to figure all this out and develop a defense using this material in only a couple of months. This is a Herculean task that no one could possibly be expected to accomplish. The Court for four (4) years has negligently and/or willfully interfered with and prevented Defendant from obtaining banking and billing records or compulsory process and prevented Defendant from legitimately seeking details of alleged offense.

17.  The State does not specify if Defendant is alleged to have ghost-billed by listing patients and Medicaid numbers of persons who never came to the practice, upcoded by listing a code for a higher degree of service than provided, substitute-billed for a provider who was not eligible to bill, schemed with the business owner, the biller, the office assistants, or whomever, for any of this. In addition, no specific acts (specific patients, specific dates of services, or specific services) are described in indictment, and no specific dates of service or specific services billed for are described in Bill of Particulars.

18.  No reasonable person can be expected to prepare a defense under the above circumstances, where the State, in the indictment has utterly failed, as required by law, to specify the overt acts which constitute the alleged criminal acts.

19.  The State, in discovery, has provided a list of approximately 54 patients which are family groups with approximately 30 adults. They claim that this discovery material represents the State informing the Defendant of the means of the illegal acts she is alleged to have committed. This, along with a Bill of Particulars, however does not cure the fatally defective and insufficient indictment. The 30 or so adults were provided in a witness list. If each psychiatric patient is seen an average of 20 visits, then these 54 patients represent about 1080 visits. Defendant, without the indictment specifying which patients and which visits are allegedly fraudulent and how they are fraudulent is left to guess about this information for each of these 1080 office visits. The State’s bill of particulars and answer to discovery states that Medicaid received bills for services for these 54 patients and lists inclusive dates of service and total amounts billed for, but does not state specific dates of service and patients for which they claim that services were billed fraudulently or what was fraudulent about the bill, except that the bills were for services “not provided by the physician,”  which could mean several different types of overt acts or omissions.

20.  Defendant is now in a situation, ordered by this Court, and produced by the State, analogous to someone being indicted and charged with murder, but not being told who she murdered, where and on what continent the murder took place, what was the nature of the alleged weapon, or even what year the murder took place. This is the ultimate injustice and sham proceeding, that should have been dismissed several years ago. This is a continuing four (4) year act of judicial and prosecutorial misconduct. There is no specific Who, What, Where, or When! These proceedings are therefore, a travesty of justice and beyond any semblance of legitimate American jurisprudence. This case brings this Court, this State, and its legal system into disrepute based on the unconstitutional, illegal, and unethical actions of this Court and this State against Defendant that run counter to every due process principle guaranteed by the United States Constitution.

21.  The State has also provided in discovery thousands of the practice’s “remittance advices” that cover an approximately two year period. Remittance advices are documents generated by Illinois Medicaid sent to the medical provider which list the names of patients billed for, the recipient’s Medicaid number, the date of the service, the code for the service claimed, the invoiced amount, and the amount paid to the provider or alternate payee by Medicaid. Defendant must guess at which of these dates of services and patients may be added to the witness list and what is fraudulent about each and every one of the invoices submitted that Medicaid used to generate the remittance advices. Defendant would have to examine each invoice, if available, examine each chart for each date of service, and determine if there was a scrivener’s error, or a somehow fraudulent invoice and determine what was fraudulent about the invoice, and who was responsible for this act. Only in July 28, 2008, four (4) years after the indictment has this Court began to enforce discovery rules and order the State to clearly identify all witnesses to be used against Defendant, although the Court still has not ordered the State to identify the acts (dates of service and details of invoice that they allege are fraudulent) that constitute the alleged crime.

22.  It appears that the State is forcing the Defendant to perform their investigation and figure out what, if anything, she should be charged with concerning these thousands of patient encounters, not just by her, but by every physician and provider in the practice during the broad indictment period, four years after the indictment was handed down.

23.  Of note, a bill of particulars does not cure a faulty indictment. People v. Meyers, 158 Ill. 2d 46, 53 (1994). The indictment must stand on its own in stating facts sufficient to support all elements of the offense. The indictment, even with discovery materials, fails to inform Defendant of the alleged means of the crime or the alleged specific acts constituting this crime, four (4) years after indictment.

24.  The indictment in this case is fatally insufficient in failing to specify the acts that allegedly constitute the crime charged. Therefore, no  crime has been legally charged and the case is null and void ab initio.

25.  Under 725 ILCS 5/114-4(e), if the State, due to lack of due diligence, fails to bring Defendant to trial within one (1) year, following the indictment, after one additional hearing scheduled 14 –30 days after this motion is filed, then the case must be dismissed with prejudice for lack of due diligence.

26.  Defendant has previously moved for dismissal, 17 months after the indictment, due to lack of due diligence and this has been unconstitutionally denied. Defendant renews her request for dismissal for lack of due diligence. After four years or 48 months post-indictment, the State clearly should have provided the Defendant discovery, including all allegedly fraudulent invoices and a bill of particulars to address the above, even if this court erroneously rules that the indictment is valid.

27.  The court has placed Defendant’s subpoenas on hold for several years and denied Defendant counsel for nine (9) months in 2005-2006. The law only requires the billing agent and practice to keep invoices for three (3) years. The billing agent now claims the invoices no longer exist. The State failed to produce any invoices for the indictment period despite repeated specific orders of Judge Pantle several years ago. It claims to have microfiche of some invoices, but these cannot include most of invoices produced by Ms. Moore, as the State only make microfiche of paper claims. State has not admitted to having or denied having in their possession copies of electronic invoices from indictment period, but has failed to produce them (the actual alleged means of the alleged crime) despite orders of the Court in 2006 to do so. Ms. Moore, by law was allowed to destroy all invoices and computer records of them before 2006.

28.  In addition, banks are only required to keep records for five (5) years. Due to physical incapacity and lack of funds, Mr. XXXX, the sole proprietor of RFOM during the indictment period, has not been able to preserve all his business and bank records. Citizen’s Bank has now informed Defense attorney Albukerk that the practice’s bank records no longer exist as it is now beyond this five (5) year period. The State has failed to ask for, subpoena, or proffer the practice’s bank records in discovery while the case has been pending for four (4) years.

29.  Therefore, the Court and State have caused Defendant to be deprived of the “instruments of the alleged crime,” (the allegedly fraudulent electronic and then paper invoices) as well as exculpatory business and bank records, and therefore, materially and intentionally prevented Defendant from preparing a defense. This is not just lack of due diligence by the State. This is active interference with the defense, as well as violation of the judges’ oaths of office.

30.  The defense cannot have invoices inspected by an expert for forgery of Defendant’s signature by someone unknown person regarding paper claims, nor inspect the electronic partner trading agreement from the third-party adjudicator, Blue Cross Blue Shield of Illinois (”BC/BS”), which allows BC/BS to accept electronic claims from Medicaid providers, for forgery of Defendant’s signature.  

31.  These acts of withholding and failing to preserve evidence by the Court and the State, in themselves should cause this case to be immediately dismissed as a sanction against the State and the Court and because it now is more difficult, if not impossible to definitively prove that Defendant did not produce or cause to be produced most of the invoices in question, nor receive most of the money given the practice by Medicaid or have any part in deciding its distribution. This is the main element and the nature of the alleged crime, stated in general terms in indictment, without description of overt acts. With the physical incapacity of Co-Defendant and his written statement that he is invoking the Fifth Amendment and has refused to give a dying declaration, Defendant is put in the impossible position of proving a negative without the help of any evidence.

32.  Defendant was UNCONSTITUTIONALLY prohibited by the court from filing any pleadings pro se by a written order of Judge Pantle, dated July 6, 2005, that has not been rescinded, and DENIED at the same time an attorney from May 2005 to January 2006, a period of nine (9) months. All Defendant’s subpoenas were put on hold by the court. Defendant has repeatedly requested to present argument to the court on her many outstanding and fully briefed motions and to represent herself and fire attorneys, initially hired by her family without her consent and then hired by her when it became clear that this court was going to continue its lawlessness and deny her all due process, right to an attorney of her choice, and right to a speedy trial. ALL her reasonable requests have been unconstitutionally denied by outrageous and dishonorable conduct of this court.

33.  Denial of her Faretta rights has been baseless, and the reasons stated on the record by Judge Pantle are legally insufficient, lacking details and only conclusory; not properly documented by this court in a manner necessary to deny Faretta rights. Speedy trial has been violated as de facto removing Defendant as pro se counsel between July 6, 2005, when the court prohibited her from filing pleadings, while at the same time denying appointment of an attorney, until Defendant hired an attorney on January 19, 2006, means defense could not have agreed to any continuance during that time and therefore, all continuances during these seven (7) months must be charged to the State, and therefore case must be dismissed for speedy trial reasons.

34.  Therefore, Defendant has been unconstitutionally barred from this court from filing or presenting this motion and many other motions, many of which have been fully briefed since February 2005. Attorneys acting on her behalf, against her wishes, have not fully presented all issues stated in Defendant’s pro se pleadings to the court. She therefore, is requesting her attorneys, denied their request to withdraw by the court and forced to continue to represent Defendant, and therefore appointed by the court over her objection, to file a motion to vacate July 6th, 2005 order preventing Defendant from filing pleadings, as well as adopt this motion and enter this motion, or in the alternative let Defendant pro se argue this motion. If the court won’t allow Defendant to argue it, Defendant requests that it be entered as an Offer of Proof, so that on appeal arguments and defenses she would have presented are preserved on the record.

            WHEREFORE, Defendant respectfully requests this Court to dismiss this case with prejudice for a fatally flawed indictment, or in the alternative for lack of due diligence or speedy trial violation. If this motion is not allowed to be filed for argument, then Defendant requests it be entered as an offer of proof.

                                                                        Respectfully Submitted,

                                                                        _______________________

                                                                        Linda Shelton, Pro Se

 

Linda Lorincz Shelton, Ph.D., M.D.

Pro Se Defendant

 

Under penalties as provided by law pursuant to Section 1-109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct.

                                                                        __________________________

                                                                        Linda Shelton, Pro Se

 

Dated: August 4, 2008

[1] People v. Foxall, 283 Ill. App. 3d 724 (1996): The defendant was charged by information with disorderly conduct based on transmitting a false report of sexual misconduct to the Department of Children and Family Services. Foxall, 283 Ill. App. 3d at 727. The reviewing court held that the information was insufficient because it did not specify the contents of the false report, and basic fairness required the State to identify the allegedly false statements. Foxall, 283 Ill. App. 3d at 727.

 

Davis: The reviewing court found that the indictment was insufficient when the defendant was charged with official misconduct based on “disseminat[ing] information,” but the indictment did not identify the contents of the alleged communication. Davis, 281 Ill. App. 3d at 990.

 

People v. Stoudt, 198 Ill. App. 3d 124 (1990): The reviewing court held that a complaint that charged defendant with resisting a police officer was insufficient when the complaint stated that the officer was engaged in the execution of his official duties but did not identify the authorized act the officer was performing. Stoudt, 198 Ill. App. 3d at 128.

 

People v. Leach, 279 N.E.2d 450 (Ill.App.1st, 1972): The defendant in Leach was charged with resisting or obstructing a police officer. The charging instrument was insufficient because it only stated that the defendant committed the above offense by knowingly obstructing a police officer. Id. at 453-454

 

United States v. Bobo, 344 F.3d 1076 (11th Cir, 2003): The indictment was insufficient because it failed to specify the nature of the scheme used by the defendant to defraud the State of Alabama and the United States.

 

United States v. Nance, 533 F.2d 699 (D.C. Cir., 1976): The indictment was insufficient because it failed to apprise the defendant of the nature of the false pretenses by which the defendant gained unauthorized control over money.

 

People v. Gerdes, 527 N.E.2d 1310 (Ill.App.5th, 1988): The defendant in Gerdes was charged with obstructing justice by giving false information to the police. The charging instrument did not specify the nature of the allegedly false information. The defendant was therefore left to wonder which of many statements to the police the basis for the charge against him was, so the appellate court dismissed the indictment. Id.

 

 

 

 


October 25, 2008

Discovery in Misdemeanor Cases in Cook County – Exceptions to Schmidt


Generally in misdemeanor cases a defendant has NO OBLIGATION to provide discovery to the state. However the State SHALL provide limited discovery to the defendant as defined by the case Schmidt. They cannot hide exculpatory evidence. Exceptions to misdemeanor Schmidt discovery rules allow the defendant to subpoena or ask in discovery for certain evidence that would not normally be allowed. Any pro se defendant in a misdemeanor case should thoroughly read Schmidt. See reference below. Judges are TOTALLY ignorant of these exceptions. Handing them a memorandum of law on the subject is very helpful. Remember though that judges don’t read 95% of what you give them – they also assume pro se pleadings are useless trash. So be tactful and state: “Your honor I apologize for reminding you of what you already know – exceptions to Schmidt discovery rules – I don’t want to insult your intelligence, but I believe this applies to my case ……..

MEMORANDUM OF LAW – EXCEPTIONS TO SCHMIDT DISCOVERY

 

            Discovery is limited in misdemeanor cases as guided by People v. Schmidt 56 Ill. 2d 572. However, in People v. Williams, (4th Dist 1980), 90 Ill. App. 3d 158, 45 Ill. Dec. 785, 413 N.E.2d 118, United States v. Nixon, (1974) 418 U.S. 683, 945 Ct. 3090, 41 L.ed.2d 1039, People v. West, (1981), 102 Ill. App. 3d 50, 57 Ill. Dec. 701, 429 N.E.2d 599, and People v. Harris, 91 Ill. App. 3d 1, 46 Ill. Dec. 256 it was decided that courts have inherent discretionary authority to order discovery in a nonfelony case for purpose of seeing that criminal trial process is fair and achieves the goal of ascertaining the truth. It was also held that disobeyance of a court order to comply with a valid subpoena is not proper manner in which to test scope of subpoena but, rather, any claim that subpoena process is being abused should be presented to trial court in motion to quash.

            In these cases tests have been adopted which allow pretrial discovery under certain limited conditions under the powers of judicial discretion. Under the suggested tests to be used for deciding if an exception to the Schmidt discovery rules should be granted:

“… a party must show (1) the material sought is evidentiary and relevant; (2) the material sought is not otherwise reasonably procurable by the exercise of due diligence in advance of trial; (3) the moving party cannot properly prepare for trial without such production and the failure to obtain the materials sought may tend to unreasonably delay the trial; and (4) the application is made in good faith and in is not intended as a general fishing expedition.” (Ibid)

 

            Considering the relevance of evidence, there is other case law that provides cause for appeal if the subpoena of and use of evidence by the defense at trial is prohibited by the court:

“Evidence concerning acts which are so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances is admissible.” People v. Olivias, 354 N.E. 2d 242, 41 Ill. App. 3d 146.

 

“For suppression of evidence to involve a violation of right to due process, it must be shown that he evidence was suppressed after a request for it by defendant, that the evidence was favorable to him and that it was material.” People v. Jordan, 69 Ill. Dec. 777, 448 N.E. 2d 237, 114 Ill. App. 3d 16, affirmed in part, reversed in part 82 Ill. Dec. 925, 469 N.E.2d 569, 103 Ill. 2 192, habeas corpus dismissed by U.S. ex rel. Jordan v. Detella, 1995 WL 76913.

 

“Evidence having a natural tendency to establish the facts in controversy in a criminal prosecution should be admitted.” People v. Jenko, 102 N.E. 2d 783, 410 Ill. 478.

 

“Defendant is entitled to all reasonable opportunities to present evidence which might tend to create doubt as to his guilt.” People v. Johnson, 355 N.E. 2d 699, 42 Ill. App. 3d 425.

 

            It would be a violation of Defendant’s due process rights if she was denied the use of relevant evidence and witnesses pertaining to affirmative defenses which are material and favorable to the Defendant. The above case law suggests that a judge has the discretionary authority to order recalcitrant witnesses for the defense to come to court and submit to interview by defense counsel so that defendant may prepare defense, and even to order them to submit to interview by deposition.

 

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