See People v. Peterson, 2015 IL App (3d) 130157 (November). Episode 106 (Duration 15:28).
One of the issues raised by Drew Peterson was whether his attorney had a conflict of interest after he signed a media deal.
So I know you know about this case.
The Drew Peterson Case
Former BolingBrook officer Drew Peterson came under scrutiny in 2007 when his fourth wife went missing.
This caused authorities to look a little more closely at the death of Drew’s third wife .
That death, in 2004, had originally been classified as an accidental death that was the finding from the autopsy report.
Everyone agreed that she had drowned but the issue was whether it happened accidentally or at the hands of another person.
Well, a new autopsy was done and the cause of death was changed to homicide.
The Appeal Decision
The legal issues on appeal were relatively straightforward.
Here, I will cover the conflict of interest issue.
Just to let you know this appeal was 87 pages long!
I know why they did that. One of the issues in the appeal was whether or not the case proved the murder beyond a reasonable doubt. I can see why the defense made that argument, they kind of had to.
This is why we see the appellate court including most of the trial testimony in their final decision. 90% of the report here is just a summary of the testimony in the case.
The Trial Testimony
I would summarize the trial testimony this way:
- Multiple Pathologists
- Medical Experts
- The Neighbor’s
- Hearsay Statements From the Victim (Scared of Defendant)
- Hearsay Statements from the Fourth Wife (He lied about his alibi)
- Defendant Attempt to Hire a Hitman
But we are looking at the issue of whether or not lead counsel entered into a conflict of interest when he signed a “media contract” with a media company.
I think we can think of this as a “publicity deal”, or a “movie or book” rights type of thing.
Per Se Conflicts of Interest
In Illinois the courts have identified three per se conflicts of interest specific to criminal defense attorneys:
(2) when defense counsel contemporaneously represents a prosecution witness; and
(3) when defense counsel was a former prosecutor who had been personally involved in the prosecution of defendant.
see ¶ 216. See also Is It A Per Se Conflict of Interest When Trial Attorney Raises Ineffective Assistance on Himself? and People v. Poole, 2015 IL App (4th) 130847 (September 2015), and The Illinois Professional Responsibility Page.
With a per se conflict there is no waiving of it. Reversal is automatic and there is no requirement of a finding of an actual conflict.
Illinois Rules of Professional Conduct
Rule 1.8 Conflict of Interest: Prohibited Transactions
The relevant portion of this rule says that…
“Unless all aspects of the matter giving rise to the employment have been concluded, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which the lawyer acquires an interest in publication, media, or other literary rights with respect to the subject matter of employment or proposed employment.”
Illinois Rules of Professional Conduct Rule 1.8(b)
Rather than focus on media sensation the case has become, I think this is the issue that can possibly get us in trouble in our own cases.
As to the per se conflict the court had no problem saying that this was not a per se conflict. Just look at the three identified per se categories.
A media contract is not on the list.
On top of that, the court had no problem finding that no actual conflict of interest existed because the record was pretty clear that Defendant was aware of the media contract and joined in it.
Specifically, the court said that the defense team wanted this deal for two reason:
- Hopefully avoid the indictment in the first place and affect public opinion and
- Defendant was using the deal to pay his attorneys (all six of them at trial).
So, the court said there was no actual conflict of interest.
No Actual Conflict of Interest
Rule 1.8(b) was kind-of intended to prevent an attorney for signing a book or movie deal for himself in the middle of a case.
Arguably, that is not what happened here.
Counsel was not singing for himself but for defendant’s defense with defendant’s consent.
In later episodes, I’ll explore some of the hearsay statements that popped up in the trial.