People v. Weinke, 2016 IL App (1st) 141196 (March). Episode 148 (Duration 10:43)

“While we have no desire to impugn the ASA’s reputation, given the power and autonomy that prosecutors have over a criminal defendant’s fate, we cannot ignore what happened.”

YIKES

This is what this reviewing court said about the ASA on the case.

…the representations made by a Cook County Assistant State’s Attorney at the hearing on the evidence deposition. As later revealed, the Assistant State’s Attorney representations regarding Gloria’s injuries, condition, and prognosis were false, misleading or unsupported. While we have no desire to impugn the ASA’s reputation, given the power and autonomy that prosecutors have over a criminal defendant’s fate, we cannot ignore what happened. Conduct of this sort is incompatible with the truth-seeking process and harms the integrity of the criminal justice system. see ¶  5.

Summary

Reviewing court says ASA exaggerated the severity of victim’s condition and misled the court as to the source and timing of her information in order to pressure the court into granting a quickie deposition.

Details of the Case

77 year old victim is found 12 hours after going over her basement stair rail. She immediately tells paramedics that her son pushed her.

The victim was battling metastatic cancer and the state told the trial judge they wanted a deposition pursuant to Rule 414 based on the substantial possibility that the victim would die from her injuries.

The state persuaded the court to allow the deposition over defense counsel’s objections that he had no discovery and no time to prepare.

3 months later she died.

It Turns Out…

In turns out, the victim was not hurt as badly as the state said she was.

The prosecutor seemed to be relying on fourth-hand information: the ASA read police reports generated by detectives, who had spoken to the victim’s daughter and an unnamed hospital nurse, who had maybe spoken to the victim’s doctors.

The injuries cited by the ASA were less than accurate and at best could only be an initial evaluation of possible injuries that eventually were ruled out by treating physicians.

Trial Court Accepted The “Proffer”

The trial judge saw no problem based on the victim’s age, cancer diagnosis, and impending surgery. The reviewing court said the state did not provide any “evidence” that a deposition is necessary. See Rule 414.

Instead, the state’s motion and statement to the court was perfunctory, cursory, and without any supporting documentation. The State offered no evidence; but rather, invoked a factual argument to stand as evidence. Allowing the deposition without the prosecution introducing any evidence was error.

Trial Court’s Failure

The State provided not a scintilla of evidence showing that the deposition was “necessary” or that there was a “substantial possibility” that the victim would be unavailable at trial. The trial court should have insisted and on something more than the bare oral statement of the assistant State’s Attorney.

Further, it was just a lie that the ASA had spoken to her doctors.

Holding

In these circumstances—where the State is making an extraordinary request and counsel is at an extraordinary disadvantage—granting the deposition without proof was reversible error.

Further, counsel did not have an adequate opportunity to crossexamine her at the deposition, and the deposition’s admission at trial violated defendant’s constitutional right to confront witnesses against him

See more professional responsibility problems in Illinois criminal courts.