IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, STATE OF ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, PlaintiHQ sa 2 Vs. No: 09 CF 1048 go; 2 DREW PETERSON, 5% J, Defendant. 7, MOTION FOR A NEW TRIAL BASED ON THE INEFFECTIVE ATTORNEY JOEL BRODSKY Now comes the Defendant, Drew Peterson, by and through his pro bono attomeys, Michelle Gonzalez and John Paul Carroll, and in support of his Motion for a New Trial Based on the Ineffective Assistance of Attomey Joel Brodsky, states as follows: PREAMBLE On September 19, 2012, attomeys Michelle Gonzalez and John Paul Carroll received a telephone communication from a member of Mr. Peterson's family. The messageavvas Et Peterson wanted these attomeys to visit him. The attorneys ir1itially visited himiat the Will County Video Visitation Center at which time they were informed that a with their client could only be conducted pursuant to court order. The attomeys themselves to the trial judge who graciously signed an Order allowing them the face-to-face conference with Mr. Peterson. At that scheduled conference, a of issues were discussed, among them the issue of the ineffective assistance of attomey Brodsky which ultimately led to the filing of this motion. This instant motion does not purport to preclude, preempt or prejudice Mr. Peterson's trial attomeys from filing additional post-trial motions arguing legal errors which allegedly occurred during the five week trial. Mr. Peterson has requested his pro bono attorneys to present only this one specific allegation, since to have his cturent trial attorneys advance this argument would create a conflict of interest between him and attomey Brodsky. Mr. Peterson is aware that 1 if he does not assert the issue of ineffective assistance of counsel in a post--trial motion, the matter would be waived for purposes of appellate review. Finally, it is the belief of Mr. Peterson, afier having conversations with attomey Brodsky, that attorney Brodsky would refuse to include this allegation in any post-trial motion. Thus, Mr. Peterson's need to have outside counsel present this issue to the Court. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS The seminal case governing the requirements to successfully present a motion for a new trial based on the ineffective assistance of counsel is found in the United States Supreme Court decision of Strickland vs. Washington, 466 U.S. 668, 104 2052, 80 L.Ed.2d 674 (1984). "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness? (Strickland 466 U.S. 687-88) The defense attomey has "an overarching duty to advocate the defendant's case" and "a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." [Emphasis added] (Strickland, 466 U.S. 688) Under the Supreme Court's holding in Strickland there are "two components to any ineffective assistance claim: (1) deficient performance and (2) prejudice." Lockhart vs. Fretwell 506 U.S. 364, 369, 113 838, 842, 122 L.Ed.2d 180. (1993) Deficient performance alone is not enough. This can be illustrated by the following example. Suppose a defense attorney was observed sleeping throughout most of the proceedings in a murder trial. That would certainly be concrete evidence of deficient perfomiance. But suppose further that a busload of nuns had witnessed and video--taped the defendant committing the murder. The ineffective assistance of counsel claim would fail, because with the testimony of the and the videotape, the defendant would have been convicted whether the defense attomey was asleep or wide awake. Thus, it is the second prong of the Strickland test that is seemingly the most important. The Supreme Court of Illinois has held that a defendant must show his "representation fell below an objective standard of reasonableness" and "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been 2 different." People vs. Albanese, 104 Ill.2d 504, 525, 85 Hl.Dec. 441, 473 1246, 1255 (1984) "The essence of an ineffective--assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered rmfair and the verdict rendered suspect." Kimmelmon vs. Morrison, 477 U.S. 365, 374, 106 2574, 2582, 91 L.Ed.2d 305 (United States Supreme Cou1?t, 1986) In People vs. Jachon, 318 Hl.App.3d 321, 251 Ill.Dec. 848, 741 1026 (lst Dist, 2000) the Appellate Court reversed a narcotics conviction because the defense coimsel, through cross-examination of the state's only witness, brought out the facts needed to convict his client. "Without proving the fact that Stidham reached into the bag and gave an object to the unknown person, the State simply did not have a case against the defendant. Since defendant was not in actual possession of the narcotics at issue, his constructive possession of them had to be established through the alleged transaction. Without evidence that Stidham reached into the bag and gave an object to an unknown person, all that remains is a scenario where defendant received an unknown amount of money from an unknown person, who was then seen talking to Stidham, who was later found to be in possession of narcotics. This scenario in no way links the defendant to the narcotics at issue. Thus, without the cross-examination by defense counsel, this element of the State's case could not have been established. We find that this scenario satisfies both parts of the Strickland test. For defense counsel to elicit testimony which proves a critical element of the State's case where the State has not done so upsets the balance between defense and prosecution so that defendant's trial is rendered unfair." (741 1031- 32) The counter-argument of a claim of ineffective assistance of counsel is that the actions of defense counsel were "sound trial strategy." This presupposes that there was an articulable strategy which flowed fiom sound reasoning. In People vs. 227 Hl.App.3d 581, 169 Ill.Dec. 746, 592 233 (lst Dist., 1992) the defense counsel in an armed robbery trial, on cross-examination elicited hearsay facts from a witness that the defendant was likely to have been involved in the armed robbery and that the defendant was involved in another armed robbery as well. The state countered the ineffective assistance of counsel argument by alleging that trial counsel's conduct fell within the wide range of reasonable professional assistance and that defense counsel's conduct provided the defendant with a fair trial. The Appellate Court felt otherwise. "We disagree with the State's characterization of defense counsel's actions as 'sound trial strategy.' The trial court recognized the problem of introducing the hearsay testimony at the time the testimony was given and stated so in the sidebar Because the hearsay 3 testimony hom Kalita was devastating to defendant's case, we find that a mistrial would have been proper. Since defense counsel failed to move for a mistrial, we find his conduct fell below the permissible standards of effective assistance as articulated in Strickland and Albanese. [Emphasis added] (592 239) The United States Supreme Court visited the ineffective assistance of counsel issue in a capital case where the public defenders failed to present mitigating evidence ofthe defendant's violent upbringing, opting instead to focus on an argument that he was not the actual killer. Wiggins vs. Smith, 539 U.S. 510, 123 2527, 156 L.Ed.2d 471 (2003). After the state supreme court denied the ineffective assistance of counsel claim, the federal district court decided that there was ineffective assistance of counsel. The district court was subsequently overruled by the United States Court of Appeals for the Fourth Circuit, which reinstated the conviction and death sentence. After granting certiorari, the Supreme Count reversed and remanded the case. "We have declined to articulate specific guidelines for appropriate attorney conduct and instead have emphasized that 'the proper measure of attomey performance remains simply reasonableness under prevailing professional norms.' Here, as in Strickland, cotmsel attempt to justify their limited investigation as reflecting a tactical judgment not to present mitigating evidence at sentencing and to pursue an alternate strategy instead. In light of these [Strickland] standards, our principal concem in deciding whether Schlaich and Nethercott exercised 'reasonable professional judgment' is not whether counsel should have presented a mitigation case. Rather, we focus on whether the investigation supporting counsel's decision not to introduce mitigating evidence of Wiggins' background was itsey" reasonable. [Emphasis in original] (156 485-86) Thus the focus of any Strickland claim of ineffective assistance of cotmsel is to look at the reasonableness of the decision to do, or not to do, something. And that reasonableness must be grounded in a logical, intelligent and sufficient justification for the action taken. 4 ALLEGATIONS OF INEFFECTIVE ASSISTANCE OF ATTORNEY BRODSKY l. When attomey Brodsky approached Mr. Peterson with an offer to represent him in the eventuality that he were to be arrested for murder, attomey Brodsky assured Mr. Peterson that he had the experience and talent to represent him adequately. This statement, which Mr. Peterson accepted as true and relied upon, was at variance with the truth. Mr. Peterson's current knowledge and belief is that attomey Brodsky has never represented any defendant at a m1u?der jury trial, or any other felony jury trial, as a lead conmsel before his trial. 2. After accepting the representations of attomey Brodsky, Mr. Peterson was encouraged by his attorney to engage in as much publicity as possible because according to his attorney, the more publicity that Mr. Peterson and his attomey received, the greater was Mr. Peterson's chances of not being indicted; and if charged, the publicity would increase Mr. Peterson's chances of an ultimate acquittal. Instead, the publicity dramatically increased the possibility of a conviction, as evidenced by attorney Brodsky's post trial statement to the media that the jury was predisposed to find Mr. Peterson guilty at the start ofthe trial. 3. Attomey Brodsky assured Mr. Peterson that they would both make money from the publicity attomey Brodsky had generated about the case and that they were in this business venture together. This was the prime motivation of attorney Brodsky, ratl1er than being motivated to provide the best legal defense for his client. 4. When Mr. Peterson was arrested, he told attorney Brodsky that he wanted to immediately demand trial so that the state would have to bring him to trial within 12l) days. Attomey Brodsky refused to demand trial and as a result Mr. Peterson was in jail for approximately three years before the case went to trial, during which ti1ne attorney Brodsky was continuing his publicity campaign instead of representing the Defendant in a proper and attentive manner. Because of the long delay, certain legislation was enacted which was to the detriment of Mr. Peterson's defense. 5. Mr. Peterson told attorney Brodsky that he wanted certain specitic attomeys to be defense attorneys for him, but attomey Brodsky refused the request even though the specific attomeys had offered their services. - 6. At one point in the trial, Mr. Peterson asked attomey Brodsky if they could waive the jury and allow the judge to decide the facts. Attomey Brodsky stated that it was legally too late for Mr. Peterson to waive a jury now that the trial was underway. 7. Attomey Brodsky had lied to Mr. Peterson on a number of occasions and when Mr. Peterson discovered the lies and talked about possibly discharging attorney Brodsky and retaining other counsel, attomey Brodsky indicated that in the event he was discharged, he would be ethically bound to publically reveal some things that were discussed between him and Mr. Peterson. 8. Attomey Brodsky made insulting comments to attorney Greenberg during the trial and Mr. Peterson tried to stop this conduct which was adverse to his defense, especially when it occtured repeatedly in front of the jury. 9. Attorney Brodsky's sarcastic comments to other members of the defense caused attorneys to resign from the defense team, all to the detriment of Mr. Peterson's defense. 10. Attomey Brodsky presented Mr. Peterson with an ARDC complaint that attomey Brodsky had created against attorney Steven A. Greenberg. Attomey Brodsky coerced Mr. Peterson to sign the complaint as if he were the author. Mr. Peterson did not want to sign the complaint and, in fact, has no complaint against attomey Greenberg. ll. Mr. Peterson did not suggest or authorize that attorney Steven A. Greenberg should be discharged as has been suggested by attorney Brodsky. 12. 'l`hat the defense of Mr. Peterson was second in importance to attorney Brodsky's control of the other defense attomeys. 13. Mr. Peterson did not want, suggest, agree to or authorize attomey Brodsky to call attomey Harry Smith as a witness for the defense. The questioning of attomey Smith, a former prosecutor, was done in reckless disregard of the previous filed motions; in reckless disregard of intelligent reason; and in reckless disregard of the vociferous and well reasoned objections of attorney Greenberg. Even the COUIT cautioned attorney Brodsky about calling the witness, whose testimony was so devastating to the defense, and caused one juror to remark that it was the reason he and other jurors convicted Mr. Peterson. 14. The attached September 24, 2012, letter from attorney Steven A. Greenberg and made part of this motion as further evidence of the ineffective assistance of attomey Brodsky. 6 For all these reasons, and for any others that may be presented at a hearing, Drew Peterson respectihlly requests that he be granted a New Trial. Respectfully submitted, rr One of Drew Peterson's pro bono attomeys Michelle Gonzalez 8770 West Mawr Avenue Suite 1300 Chicago, IL 60631 3 12-5 04-7 7 96 John Paul Carroll 608 South Washington Street Suite 207 Naperville, IL 60540 63 0-71 7-5 000 7 . Pagclofl `SUHIUGI cm?AGO.?.Lnl0?soo?4 uuwn-one 5opt?mb?r24,2012 6?603 Ile: Dr?wPata?s?n ?earMr.Br?dsky: yuurdafamamwrunamts Thainnurmcr, "tntemews, vuulmuqvchatyour cmicisms are entirely fabricated. You waited the greatest cass. imvrance. nbduracv, and 1 -faca32a38f. jp 9/25/2012 .. . Mnevudsky Saptembo?24,2?12 Page! thegame when he falls behind. befuretaklng his ball home. loudly his npwnent cheated. instead You or from other mussel. http://htmlimgl 1db.jPg 9/25/2012 .. Pagclofl Mr.Bn:dsky Septon?ber24,1?11 P?go3 Needl theguacasc? upuudbym?mws. 'supulualsa Asycu Thatls Therewasmeasyarvdfar 9/25/2012 .. Mnbrodsty $ept?mber24,2012 Papll ofynurckenfshesthtuest. alwayshamah??tJ?el?r?dsky.' Ilindthatalittle Yuuhakadnut ??uh?kt?dth?nne&caII Your - wculdsayanything, numattchuwabsmd. you. him? 1 tq5u1/images/4- 1364213 5928. jp 9/25/2012 .. Pagclofl Mr.Br0dd?y S?pt?mbcr24,2012 Pap! tnwhatisplayingcutbcicmhim. ufuumm. A idisague. Unfortunately, Never happened! Or tlH?i??\UIdfIdb Y??s,mvEUR?d?a??o mam. clfenhwzarasynuhad? 9/25/2012 . . Page-:10fl Mrjrudsky Sept?mber14.Z012 Pagei I Ekawise hnpe you were mt cunfustng my pmfnalcnal, articuhte, and sensible t?sne?d..?r?tI?o?rvuisetrl?d Name. Ohm! fuharwasc?nvl?tnd+ - tum. Ynwdalmhasmbasislnfact. N0?n? t?dy?urdudsi?sm Raiinandbanyl you}. baseicssacnasaticn 1*.5 Hniill Q1 if i.o.h1_a iit accusations. hmv//htmIimc'% 9/25/2012 .. Pagclofl Mnbrudsty Page? You alma madathoci?o?i?a,aeody?uaro falsgandcanherefmedbymany. B. Thatstatanuntisa C. . Whetherthat 993* defendant. (Burney, 152 !|L2d?t54, 1?8Hl.Dec. 19, 4- htm://htmlimql 9s800 1 tq5u1/ images/7 -22dc d8b603 . 9/25/2012 Page 10f1 September24,2012 Page8 discussion that ethically should remain confidential, rather than being made public inyour inexperienced criminal practitioner, a category that you embrace, understands that there are only tour (4) that beiongto the client: 1. Whether to plead gulltyornotguilty; 2. 3. 4. Whethertoappeal. D. You claim in your Facebook posting and during media interviews that I never Assetlonh ahnvetyouknowdwatisfalse. thenclalm E. Youfa?claim cha?e??ed Harry Smith'; abmvto testify, elther?re--t1?ialora?ttrial. referringtothat decisions Commentary, at 4-68(2ded. 162 Id 214, 231-32. M2 1230, 1133-34 (1994) 9/25/2012 .. .. Page 10fl Mn8r?dshr September 24. 2012* /*41929 4 as 'yetunut/aerfuikxm an Gre?nberds part'. Thuseswaments are s/meddaemm cawtnf/cur". fthe mmpelilngs an In ynurpastingj. Funbemsan, yew were present mean/y Y?u, wereua??d:le http://htmlimgl 1 tq5ul/images/9-3c96c6bb7a. 9/25/2012 .. Page 10fl Mr.Br?dsky $eptember24,2012 Pagew F. Those statements are lmewingfy false. Yau are mum that I fihd a Evidence "MaH?nta?DIsrn13sB?s?d?nd>>e Yau signedtireniatians. Yauumwaawwadruttiwr G. athers. Need! -- -- . Page l0f1 Mn8radsIy Pqeii remit cf ycur inexper/ence, was that you were the jury with your H. keeping out unreliable hcursuy md herring the 'hlt man" testimony. Agnh, your Because Hadyaunatpmvided I. 'rcu television tent". using/e uvlmessin thiscuse. rfurtheradupmyuaxmpainrumu shi: time my an??h??rec?rd pmmafmg because I was nun/de by the trufi/tent. 1-60692882fO.jpg 9/25/2012 Page 1 0f1 5eptemb?r24,2012 P?ge12 J. Agdn,?n absolute/y_/dsc statement. We newrmet Thenare Icnaleny . It, Y?u?w??t?do?Hwusunprep??edf?r Indeed}: acmrneyamuldbemveded. cnmments. The comment was bath pemcnatiyzmd prvjissabnuwy uncalred fan 3 19v5 9s8001tq5u1/imagcs/ 1 2-449ad643 62 . 9/25/2012 Page 1 0f1 Mnlrudsky Septembcr24,2?12 Fagel.3 dcddedtcleaveme. defense. Suchcummentsareheneadwauv A. nnamaib}. 8?6andRuIe4?4. baddaaracmr. ever them mm developing a dose The jurors numnly maid have 1 3-92bb8cf7 3b . jp 9/25/2012 Page 1 0f1 $eptember24.2012 Pagei.4 B. That I 'dIdn't prepare at night because As with your drinkin" was with other prusnmenz and respected individuals, ynussdh Fwsanailymd Mmmwuwmw? 169ba.jpg 9/25/2012 I Page I of 1 Hr. Bredsky september 24, 2012 Page 15 the ether attorneys. Perhaps Drewhas a burningdesiretn spend the Iifo in the penitentiary. tam certain, helphimtufulii that qual. better you nnat let them do thdrieh. sincerely. Steven A Guenther: 5*6/mms ec: Drew Petersen MI mum! of heard - Media 9/25/2012