People v. Peterson

2022 IL App (3d) 220206

219 N.E.3d 1168

467 Ill.Dec. 769

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Drew W. PETERSON, Defendant-Appellee

(Joel A. Brodsky, Appellant).

Appeal No. 3-22-0206

Appellate Court of Illinois, Third District.

Filed December 2, 2022

Joel A. Brodsky, of Chicago, appellant pro se.

Michael J. Renzi, Public Defender, of Joliet (Jason Strzelecki, Assistant Public Defender, of counsel), for appellee.

James W. Glasgow, State's Attorney, of Joliet (Patrick Delfino, Thomas D. Arado, and Justin A. Nicolosi, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

JUSTICE HAUPTMAN delivered the judgment of the court, with opinion.

¶ 1 Appellant, Joel A. Brodsky, appeals from an order of the Will County circuit court enjoining appellant from speaking about his representation of Drew W. Peterson and from disseminating or disclosing any information regarding such representation, or any information obtained during such representation, to any media outlet or to any individuals other than his own counsel.

¶ 2 Pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017), this court has appellate jurisdiction over the interlocutory appeal of the circuit court's order. The standard of review we employ is whether the trial court abused its discretion when it entered the order at issue. Zurich Insurance Co. v. Raymark Industries, Inc. , 213 Ill. App. 3d 591, 594, 157 Ill.Dec. 655, 572 N.E.2d 1119 (1991). This court is charged with determining whether the trial court " ‘acted arbitrarily without the employment of conscientious judgment ***and ignored recognized principles of law so that substantial prejudice resulted.’ " Id. at 594-95, 157 Ill.Dec. 655, 572 N.E.2d 1119 (quoting In re Marriage of Aud , 142 Ill. App. 3d 320, 326, 96 Ill.Dec. 615, 491 N.E.2d 894 (1986) ). For the reasons set forth below, we affirm.

¶ 3 I. BACKGROUND

¶ 4 In 2012, Peterson was convicted by a jury of murdering his third wife, Kathleen Savio, and was sentenced to 38 years in prison. Brodsky provided legal representation to Peterson during his trial. Approximately nine years later, on October 19, 2021, Peterson filed a pro se petition for postconviction relief under section 122-1 of the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 (West 2020) ), alleging, inter alia , that Brodsky provided ineffective assistance of counsel, lied about his experience defending accused murderers, encouraged Peterson to engage with the media to increase Brodsky's fame and legal practice, responded harshly to the advice of cocounsel, and threatened to withdraw as lead counsel if Peterson testified at trial.

¶ 5 On May 17, 2022, while Peterson's petition for postconviction relief was pending in the circuit court, WGN News, of Chicago, aired a television interview with Brodsky. WGN News also published a written article, titled "Drew Peterson's former attorney considers revealing killer cop's secrets," that included excerpts from Brodsky's television interview. See Ben Bradley & Andrew Schroedter, Drew Peterson's Former Attorney Considers Revealing Killer Cop's Secrets , WGN 9: WGN Investigates (May 18, 2022), https://wgntv.com/news/wgn-investigates/drew-petersons-former-attorney-considers-revealing-killer-cops-secrets/ [https://perma.cc/5BF8-6U9H]. In relation to the unsolved disappearance of Peterson's fourth wife, Stacy Peterson (Stacy), the article quoted Brodsky as stating, " ‘It's something that weighs on my conscience.’ " Id. Brodsky was also quoted as declaring: " ‘I would never do anything that would hurt a former client, but he's in prison, he's never getting out. So, if he's a man, he'd say "I'm done, here's what happened," so people can have closure.’ " Id. Brodsky further intimated " ‘I feel bad about *** [Peterson] still not taking responsibility and Stacy still being missing. I'm thinking about maybe revealing what happened to Stacy and where she is.’ " Id. In addition, with respect to both Stacy and Peterson's third wife, Savio, Brodsky was quoted as broadly asserting " ‘I know everything about both of [Peterson's] wives—everything.’ "¹ Id.

¶ 6 The day after Brodsky's television interview, May 18, 2022, Peterson served Brodsky with an emergency motion for an order prohibiting the disclosure or dissemination of information obtained during his legal representation of Peterson. Peterson argued that, in light of his ineffective assistance of counsel claim, Brodsky was a potential witness in the postconviction proceedings. Thus, while Brodsky no longer provided legal representation to Peterson, the circuit court "ha[d] an interest in taking necessary actions to preserve the fairness and integrity of" the postconviction process. According to Peterson, "even the suggestion by [Brodsky] that [Peterson] made inculpatory statements would so drastically prejudice [Peterson] and taint any potential jury pool that a fair trial could never be had in this matter." Peterson maintained that Brodsky's statements in the television interview revealed an intent "to disseminate and disclose the substance of communications allegedly had with *** Peterson" that were "clearly *** privileged *** between a client and attorney." Brodsky also suggested that, based on those communications, "he knows what actually happened to Kathleen Savio and Stacey [sic ] Peterson." In Peterson's view, the scenario created by Brodsky was without precedent and in conflict with the Illinois Rules of Professional Conduct of 2010 and the canons of ethics applicable to attorneys. Peterson's emergency motion was noticed for hearing on the following day, May 19, 2022.

¶ 7 Brodsky and plaintiff, the People of the State of Illinois, were present at that hearing. Peterson was also present by counsel. When Peterson's attorney began his argument on the emergency motion, Brodsky interjected for the purpose of arguing lack of jurisdiction. The circuit court acknowledged Brodsky's argument before stating that he "was not a party to th[is] hearing at the moment" and should "[j]ust have a seat."

¶ 8 Peterson's attorney continued his argument, characterizing the implication from Brodsky's interview as that "Brodsky knew what had happened to the victim in this case, [Savio,] as well as Mr. Peterson's fourth wife," Stacy. Thus, "the only way to preserve the integrity and the fairness of th[e] [postconviction] process [wa]s to issue *** a gag order[,] preventing Mr. Brodsky *** from disseminating or disclosing any information in any form or in any manner whatsoever in relation to this case." Otherwise, Brodsky's dissemination or disclosure of privileged information "would go a long way toward tainting any potential jury pool *** that would serve in a new trial."

¶ 9 The State agreed with the stated facts and Peterson's position, including that Brodsky was a potential witness in the postconviction proceedings and that Brodsky's dissemination or disclosure of privileged information would violate the Illinois Rules of Professional Conduct of 2010, but argued that Peterson could potentially waive the attorney-client privilege pertaining to the communications at issue by testifying during the third stage of the postconviction proceedings.

¶ 10 The circuit court responded, at some length, to the parties’ arguments. The court described the ability to speak confidentially with an attorney, even an attorney who has retired or been disciplined, as "sacrosanct" and "a bedrock [principle] of our system." The court noted that the General Assembly has established a right of "every single person in the State of Illinois *** to petition the Court post-conviction about claims that their constitutional rights have been violated," including for violations of the right to effective assistance of counsel. The court opined that "a situation where an attorney would make a statement to the news media that it's about time *** [to] tell the truth almost goes directly to the claim that there was ineffective assistance of counsel. It's astonishing that such a thing would happen[ ]" because "it places the whole [postconviction] hearing procedure at risk."

¶ 11 At this point in the hearing, Brodsky again interjected, requesting to be heard on the emergency motion. Brodsky stated, "[y]ou're talking about an order that's going to bind me, I have a right to be heard." The circuit court denied Brodsky's request, stating "if I issue the order, then you will be able to file any motions that you want in regard to that order, but you are not a participant and this isn't an evidentiary hearing." The circuit court then continued its detailed findings on the record, indicating that further statements by Brodsky to the news media "would make the whole [postconviction] process almost meaningless[ ] [and] would almost require a new trial on its face if such a conversation [between Brodsky and Peterson] was published outside of the courtroom." The circuit court granted the emergency motion, finding that "any reasonable person would *** view [Brodsky's statements] as a threat to Mr. Peterson." The court indicated that it would revisit its order once the State filed a motion to dismiss Peterson's petition for postconviction relief. The court then reiterated that Brodsky could contest the order by filing any motions that he wanted.

¶ 12 Immediately after the hearing, the circuit court entered a written order, formally granting Peterson's emergency motion. The circuit court's order provided as follows:

"Petitioner's Emergency Order is GRANTED, and Joel Brodsky is hereby enjoined from speaking about his representation of Mr. Peterson and from disseminating or disclosing any information regarding such representation, or any information obtained in the course of such representation, to any media outlet or to any individuals other than his own counsel. This order to remain in effect until further order of this Court."

Brodsky timely appealed under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2017).

¶ 13 II. ANA...