IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT RANDOLPH COUNTY, ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, ) ) Plaintiff, ) ) vs. y ) DREW PETERSON, ) ) Defendant. ) MOTION TO SUPPRESS NY. NOW COMES, Defendant, DREW PETERSON, by and through his attomey, Lucas H. Liefer, and moves this Honorable Court to suppress and bar from use as evidenee, certain conversations unlawfully obtained in violation of 725 ILCS 5/108 etal., and in violation of Defendant’s rights as guaranteed by the Fourth and Fourteenth Amendments of the U.S, Constitution. In support thereof he states as follows: 1, The Defendant, DREW PETERSON, is charged with the offenses of Solicitation of Murder for Hire and Solicitation of Murder in the above-captioned matter. 2. Several recorded conversations were disclosed by the State to the Defense which are purported to be between Informant A and the Defendant, DREW PETERSON. 3. The Defense expects the State will attempt to introduce those recorded conversations into evidence should this matter proceed to trial, 4, “Because Illinois citizens are entitled to be safeguarded from unnecessary governmental surveillance and other unreasonable intrusions into their privacy, the statutory restraints on eavesdropping must be strictly construed with respect to all requests and consents for the authority to use an eavesdropping device.” People v. Bockman, 328 Ill. App. 34 384, 388, 767 N.E.2d 832, 836 (2nd Dist. 2002). CONSENT 5, “Where any one party to a conversation to occur in the future has consented to the use of an eavesdropping device to overhear or record the conversation, a judge may grant approval to an application to use an eavesdropping device.” 725 ILCS 5/108A-3. Page 1 of 86. “The judge may authorize or approve the use of the eavesdropping device where it is found that one party to the conversation has or will have consented to the use of the device.” 725 ILCS 5/108A-3(a. 7. The State disclosed a “Consent by Party of Conversation to be Subject to Electronic Surveillance by use of an Eavesdropping Device”, which appears to be signed by Informant A and Louis Silich on October 3, 2014, That document is attached hereto and made a part hereof and marked Exhibit A. . This purported “Consent” does not bear a case number nor a suspect in the caption. 9. This “Consent”, claimed by the State to be signed by Informant A allows for the “use of an electronic eavesdropping device to conduct electronic surveillance of a conversation or conversations expected to occur between myself (Informant A) and the suspect, Stephen Nardi. ...” 10. The Defense is unaware of and unfamiliar with any individual by the name of Stephen Nardi 11 Informant A did not consent to the use of an electronic eavesdropping device to record conversations between himself and the Defendant. 12, The “Consent” claimed by the State to be signed by Informant A consenting to the use of an electronic eavesdropping device to record conversations between himself and Stephen ‘Nardi is insufficient to permit a judge to approve an application for the use of an eavesdropping device to record conversations involving the Defendant pursuant to 725 ILCS 5/108. AUTHORIZATION 13, “The State’s Attomey or an Assistant State’s Attorney authorized by the State’s Attorney may authorize an application to a circuit judge or an associate judge assigned by the Chief Judge of the circuit for, and such judge may grant in conformity with this Article, an order authorizing or approving the use of an eavesdropping device by a law enforcement officer or agency having the responsibility for the investigation of any felony under Illinois law where any one party to a conversation to be monitored, or previously monitored in the case of an emergency situation as defined in this Article, has consented to such monitoring.” 725 ILCS 5/108A-1. Page 2 of 814, Defendant believes that the authorization in this case was sought in order to overhear conversations relating to the Defendant’s alleged plan to kill State's Attorney James Glasgow. a. Conflict 15, “[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest.” Il, Sup. Ct. R. Prof Conduct, R 1.7 (2015). 16. “It has long been the law in Illinois that ‘an attomey cannot represent conflicting interests or undertake to discharge inconsistent duties.” People v. Courtney, 288 Ill. App. 34 1025, 1032, 687 N.E.2d 521 (rd Dist. 1997); (citing People v. Gerold, 265 Il. 448, 477, 107 NE. 165, 177 (1914). 17. “This “rigid” rule is designed to protect against an actual conflict of interest and the appearance of such a conflict: ‘It is unnecessary that the prosecuting attorney be guilty of an attempt to betray confidence; it is enough if t places him in a position which leaves him open to such charge. The administration of the law should be free from all temptation and suspicion, so far as human agencies are capable of accomplishing that object.” Id. 18, “[W]here a conflict involves the head of the State’s Attorney's office, a special prosecutor should be appointed because of the ‘overriding requirement that the public must be able to maintain the right to believe in the total integrity of the Bar as a whole.”” People v. Lang, 346 Ill. App. 3d 677, 682, 805 N.E.2d 1249, 1254 (2nd Dist. 2004); (citing People v. Courmey, 288 Ill. App. 34 1025, 687 N.E. 2d 521 (1997); State v. Cooper, 63 Ohio Mise. 1, 409 NE.2d 1070 (1980) 19. **Justice and the law must rest upon the complete confidence of the thinking public and to do so they must avoid even the appearance of impropriety.” People v. Lang, 346 Il App. 3d 677, 682, 805 N.E.2d 1249, 1254 (2nd Dist. 2004); (citing Arizona v. Latigue, 108 Ariz, 521, $02 P.2d 1340 (1972)). b. Special Prosecutor 20. When a State's Attorney is interested in any cause or proceeding, civil, or criminal, which it is or may be his or her duty to prosecute, the court in which said cause or proceeding is pending may appoint some competent attomey to prosecute such cause or proceeding. 55 ILCS 5/3-9008. Page 3 of 821. The appointment of a special state's attomey involves the exercise of judicial discretion, bout the statute does not specify the procedure to be employed in order to bring the matter to the court's attention and invoke its jurisdiction. Jn re MeNulty, 60 Ill. App. 34 701, 704, 377 N-E.24 191, 194 (Ist Dist. 1978) 22. “The filing of a petition by the state's attorney is one proper method of initiating the procedure.” Jd. 23. “The special prosecntor may be appointed at any stage of a case, including the period prior to formal charging,” Baxter v. Peterlin, 156 Ill. App. 34 564, 566, 509 N.E.2d 156, 157 Grd Dist. 1987); (See People v. Sears (1971), 49 Ill. 2d 14, 273 NE.2d 380). 24, The State disclosed a State’s Attorney's Authorization for an Application and Onder Approving the Use of an Eavesdropping Device, dated and signed by James Glasgow, State's Attomey for Will County on October 23, 2014. That document is attached hereto and made a part hereof and marked Exhibit B. 25. The State disclosed a State’s Attorney Authorization for an Application and Order Approving the Extension of the Authorization Period for the Use of an Eavesdropping Device, dated and signed by Ken Grey, Chief Deputy State’s Attomey on the Authority of or in the Absence of James Glasgow. That document is attached hereto and made a part hereof and marked Exhibit C, 26. The Authorizations signed by State’s Attorney James Glasgow and his Chief Deputy Ken Grey are improper to permit a judge to approve an application for the use of an eavesdropping device pursuant to 725 ILCS 5/108, ORDER 27. “Where any one party to a conversation to occur in the future has consented to the use of aan eavesdropping device to overhear or record the conversation, a judge may grant approval to an application to use an eavesdropping device pursuant to the provisions of this section.” 725 ILCS 5/108A-3(a). 28, The judge may request the applicant to furnish additional testimony, witnesses, or evidence in support of the application, 725 ILCS 5/1084-3(b) 29.**A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.” Il. Sup. Ct,, R 63. Page 4 of 830. “Under our Code of Judicial Conduct, a judge is required to disqualify himself if he is “likely to be a material witness in the proceeding,”” People v. Ernest, 141 Ill. 2d 412, 422, 566 N.E.2d 231, 235 (1990), 31. The State has disclosed to the Defense an Application for Order Authorizing Use of Eavesdropping Device, dated and signed on October 23, 2014. That document attached hereto and made a part hereof and marked Exhibit D. 32. The State has disclosed to the Defense an Application for Order Extending Previous Authorization for the Use of Eavesdropping Device, dated and signed on November 20, 2014. That document attached hereto and made a part hereof and marked Exhibit E. 33. The State has disclosed to the Defense an Order signed by Chief Judge Richard Schoenstedt authorizing the use of an eavesdropping device for the purpose of overhearing and/or recording a conversation between Drew Peterson and Informant A, dated and signed on October 23, 2014. That document is attached hereto and made a part hereof and marked Exhibit F 34. The State disclosed an Extension Order signed by Chief Judge Richard Schoenstedt authorizing the continued use of an eavesdropping device to record a conversation between Drew Peterson and Informant A. That document attached hereto and made a part hereof and marked Exhibit G. 35. Chief Judge Richard Schoenstedt traveled to Stateville Correctional Center on October 3, 2014, met with, and interviewed Informant A, twenty (20) days before an application for eavesdropping device was presented. See FBI report attached hereto and made a part hereof and marked Exhibit H. 36. Chief Judge Richard Schoenstedt actively participated in the investigation by interviewing Informant A before an application for use of an eavesdropping device was presented. 37. “[E]e was not acting as a judicial officer but as an adjunct law enforcement officer”. Lo- Ji Salles, Inc. v. New York, 442 U.S. 319, 327 (1979). 38. A judge cannot be asked to maintain the requisite neutrality with regard to an investigation in which he actively participated, 39. The Orders signed by Chief Judge Richard Schoenstedt are improper and lack ‘impartiality and thus are invalid under 725 ILCS 5/108. Page 5 ofSEALED FILE 40. “The State's Attorney or an Assistant State’s Attomey authorized by the State’s Attorney may authorize an application to a circuit judge or an associate judge assigned by the Chief Judge of the circuit for, and such judge may grant in conformity with this Article, an order authorizing or approving the use of an eavesdropping device by a law enforcement officer or agency having the responsibility for the investigation of any felony under Illinois law where any one party to a conversation to be monitored, or previously monitored in the case of an emergency situation as defined in this Article, has consented to such monitoring.” 725 ILCS 5/108A-1. 41. “Applications made and orders granted under this Article shall be sealed by the judge 725 LCS S/108A-7. 42. File 14-MR-2065 does not contain a Consent by Party of Conversation to be Subject to Electronic Surveillance by use of an Eavesdropping Device. 43, File 14-MR-2065 does not contain a State’s Attomey’s Authorization for an Application and Order Approving the Use of an Eavesdropping Device nor a State’s Attorney Authorization for an Application and Order Approving the Extension of the Authorization Period for the Use of an Eavesdropping Device. 44, File 14-MR-2065 does not contain an Application for Order Authorizing Use of Eavesdropping Device nor an Application for Order Extending Previous Authorization for the Use of an Bavesdropping Device. 45. Fille 14-MR-2065 does not contain an Order signed by Chief Iudge Richard Schoenstedt authorizing the use of an eavesdropping device for the purpose of overhearing and/or recording a conversation between Drew Peterson and Informant A, nor an Extension Order signed by Chief Judge Richard Schoenstedt authorizing the continued use of an eavesdropping device to record a conversation between Drew Peterson and Informant A. 46. A certified copy of said file dated July 8, 2015 is attached hereto and made a part hereof as Exhibit I. 47. The documents were not properly sealed pursuant to 725 ICS 5/108 DUE PROCESS 48. “Due process of law, as a historic and generative principle, precludes defining, and thereby confining standards of conduct more precisely than to say that convictions cannot Page 6 of 8be brought about by methods that offend a ‘sense of justice’”. Rochin v. California, 342 US. 165, 173 (1952). 49. The Due Process Clause imposes “an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and faimess which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses”. Id. at 169; (Malinski v. New York, 324 US. 401). 50. The Due Process Clause was intended to prevent government officials “from abusing [their] power, or employing it as an instrument of oppression”. Collins v. Harker Heights, 503 U.S. 115, 126 (1992), 51. “{T]Jo perform its high function in the best way ‘justice must satisfy the appearance of justice.” In re Murchison et al., 349 U.S, 133, 136 (1955); (Offutt v. United States, 348 US. 11, 14). 52. “A fair trial in a fair tribunal is a basic requirement of due process.” Jn re Murchison et al., 349 US. 133, 136 (1955). 53. “{O]ur system of law has always endeavored to prevent even the probability of unfaimess.” Id. 54, The State’s actions of impropriety on almost every level in pursuing the eavesdropping order offends society's sense of fair play and decency. 55. The conduct of the States Attorney, Chief Deputy, and Chief Judge shocks the conscious to the extent that justice can no longer be served in this proceeding. WHEREFORE, the Defendant, DREW PETERSON, respectfully prays this Honorable Court: A. Enter an order suppressing the unlawfully recorded conversations. B. Enteran order barring the State from introducing or referencing the evidence unlawfully recorded. C. Grant any other relief that may be just and proper. Respectfully Submitted, Z2ZZ ‘Lucas H. Liefer- #6306445 Page 7 of 8PROOF OF SERVICE LUCAS H. LIEFER on oath states that he hand-delivered a true copy of the above Motion to attomey of record on the — “day of. Lagat, 2015 to Randolph County's State Attorney Randolph County Courthouse One Taylor St. Chester, IL 62233 Lucas H. Liefer - 6306445 COOPER & LIEFER PO Box 99 Red Bud, IL 62278 Page 8 of 8IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT. RANDOLPH COUNTY, ILLINOIS i ‘THE PEOPLE OF THE STATE OF ILLINOIS, ) L ) vs. ) WXGA, encléGin: } mance ) DREW PETERSON, ) ORDER GRANTING DEFENSE REQUEST TO FILE EXHIBITS UNDER SEAL THIS MATTER, before the Court on this 24" day of August, 2015. The State present by Randolph County Stafe’s Attomey, Jeremy Walker. The Defendant present with his attorney Lucas H, Liefer. The Court being advised the parties are in agreement to the entry of this Order, and finding the contents of the Exhibits to the Defendant’s Motion to Suppress to be filed by the Defense, contain information which may violate the Protective Order entered by this Court prior hereto. The Court being otherwise fully advised in the premises ORDERS that the Exhibits to the Defendant’s Motion to Suppress shall be filed under seal and the Clerk of the Court is directed to file same under seal and said Exhibits shall not be accessed without further Order of the Court. IT IS SO ORDERED. Aug 2 é Gireuit Judge Page 1 oft