The Drew Peterson Rule

Will County State's Attorney James Glasgow received a favor from outgoing Governor Rod Blagojevich when the former governor signed into law the controversial "Drew Peterson" exception to Illinois' hearsay law.

The relevant portion of the "Hearsay exception for intentional murder of a witness" is set forth below:

"(a) A statement is not rendered inadmissible by the hearsay rule if it is offered against a party that has killed the declarant intending to procure the unavailability of the declarant as a witness in a criminal or civil proceeding.

(b) While intent to procure the unavailability of the witness is a necessary element for the introduction of the statements, it need not be the sole motivation behind the murder which procured the unavailability of the declarant as a witness."

So, in order to use Ms. Savio's statements against him, the State must prove that Drew Peterson killed Ms. Savio "intending to procure the unavailability of the declarant as a witness in a criminal or civil proceeding." That is legalese for he killed her "to prevent her from testifying against him."

Surely the State is not going to say that he killed her to prevent her from testifying at the upcoming murder trial. That is ridiculous. So, they must plan to argue that he killed her to prevent her from testifying against him in their divorce case. I recall reading that she was found dead in the bathtub "shortly before their divorce was finalized." Nothing that I read had any more detail than that. It is unclear whether there were any hearings scheduled in their divorce case at which Ms. Savio was expected to testify. Of course, there is always the possibility that she could testify at the prove-up, so I guess until the divorce was finalized there was always the possibility that she would testify at least once more.

So, unless this law is declared unconstitutional before trial, it is likely that Ms. Savio will be allowed to testify from "beyond the grave." Still, I have my doubts as to the strength of the state's case. It will really be embarrassing if they go to all this trouble to amend the state's criminal code to prosecute one guy, and still lose.

Hearsay exception for intentional murder of a witness. 725 ILCS 5/115-10.6.

Mechanics Lien Cheat Sheet

GENERAL CONTRACTOR:

Lien: A verified claim for mechanics lien must be recorded within 4 months of last providing work.

Foreclosure: An action to foreclose a mechanics lien must be filed (and a lis pendens recorded) within two years of last providing work, or within 30 days after a demand to commence the suit pursuant to 770 ILCS 60/34.

SUBCONTRACTOR/MATERIAL SUPPLIER:

Homeowners Notice: Subcontractors supplying services or materials to a single family, owner-occupied residence must notify the occupants that it is supplying services or materials within 60 days from the date of first supplying services or materials.

Notice of Claim: Subcontractors must serve a written notice of the claim on the owner and the lender within 90 days of last performing work or delivering materials.

Lien: A verified claim for mechanics lien must be recorded 4 months of last performing work or delivering materials.

Foreclosure: An action to foreclose a mechanics lien must be filed (and a lis pendens recorded) within two years of last providing work, or within 30 days after a demand to commence the suit pursuant to 770 ILCS 60/34.

Ordinance Violation Does Not Equal Negligence

Husband and wife are in their early sixties. They live on the rented top floor of a two-flat in Chicago. Wife notices that husband has been missing from the house for some time. She calls out his name. She hears him respond from the alley behind the house. He yells back that he fell over the railing of their back porch. He then loses consciousness and dies. An investigation reveals that the back porch and railing are in violation of several city ordinances. Wife files a wrongful death lawsuit against the landlord.

Landlord moves for summary judgment alleging that plaintiff cannot prove that the ordinance violations proximately caused her husband's death. Landlord points out that there were no witnesses to the fall. Even the decedent's statement that he "fell over the railing" does not tell why he fell over the railing. He could have been climbing on the railing at the time and been blown off by the wind, or knocked off by a bird, or pushed off by his wife, etc.

The trial court and the appellate court both agree. Liability cannot be predicated on conjecture, rather proximate cause is established when there is reasonable certainty that the defendant's acts or omissions caused the injury. Violations of an ordinance or a failure to comply with the building code, by themselves without evidence that the violations caused the injury, do not establish proximate cause.

Strutz v. Vicere, 1-07-2564, decided by the 1st District on April 29, 2009. Not yet released for publication.

How NOT to avoid jury duty.

Although it worked for Erik Slye of Belgrade, Montana (he was excused from jury duty), I would not recommend this course of action for anyone else trying to avoid his or her civic duty.

See Affidavit of Erik Slye here.

Woman caught hiding $800,000 from husband, Sues the bank for telling him

A Long Island, New York woman is suing Chase Bank for telling her husband that she had a secret account worth more than $800,000 at the bank.

Chase Bank cold called the house to offer investment advice. The husband answered the phone. The Bank told him about the account.

The husband then "began harassing [the wife], asking for money from the funds that he can invest in the stock market and to cover a margin call he had on his stock account," the wife's suit says. The husband then began "alienating" the wife, so she forked over $155,000 "to save her marriage and restore order in the marital home," the suit says.

The wife is now suing the bank to recover the $155,000 that she paid to her husband on the grounds that the bank violated federal privacy laws that "prohibit the disclosure of non-public, personal information."

Lenders can shut down cars of delinquent borrowers.

AOL Autos has a good article about a new piece of technology that allows car dealers or lenders to remotely disable a vehicle if the borrower misses a payment. The devices, which are apparently required by a growing number of subprime auto lenders, will alert the driver with a concert of tones and flashing indicators a couple of days before a payment is due. Then, a couple of days after the deadline, if no payment is made, the power will be completely cut. The devices also contain GPS so that the lender can quickly locate and retrieve its collateral.

That's not fair!

Plaintiffs can file suit under the Illinois Consumer Fraud and Deceptive Business Practices Act for conduct that was neither fraudulent nor deceptive.

A plaintiff may allege that conduct is "unfair" under the Act without alleging that it was deceptive according to the ruling out of the First District in Demitro v. GMAC. In that case, plaintiff bought a Chevy Suburban for nearly $40,000. His payments were$742.18 per month. Not surprisingly, he couldn't afford it. He became delinquent nearly $2,200. He contacted GMAC. They wrote him a letter giving him seven days to come current. During that seven day period, he wrote a check to pay off his balance, but it bounced, so his truck was repossessed.

GMAC sold the truck to pay off the balance. Plaintiff sued alleging that it was unfair that his truck was repossessed during that seven day time period. (Incidentally, he never paid off his delinquency. He claimed that his check bounced because he couldn't get to the credit union to deposit funds to cover his check because his truck was repossessed.)

In any event, the court agreed that GMAC's conduct was unfair. In determining whether conduct is unfair, courts consider whether the practice offends public policy, whether it is oppressive, and whether it causes consumers substantial injury. All three criteria do not need to be satisfied to support a finding unfairness. A practice may be unfair because of the degree to which it meets one of the criteria or because to a lesser extent it meets all three.

Plaintiff was awarded $7,560 in compensatory damages, $53,101 in attorneys' fees, and $1,151 in costs.

Illinois seeks to ban texting while driving.

Proposed paragraph (b) of Illinois House Bill 71:

"A person may not operate a motor vehicle on a roadway while using an electronic communication device to compose, send, or read an electronic message."

This bill already passed the House 89-27 and now awaits a vote in the Senate.

Click here for the full text of the bill.

What happens when a law student mixes advocacy with social networking?

When 25 year-old law student Adam Reich took on a post-conviction case as part of the USC Gould School of Law’s Post-Conviction Justice Project, he decided that his advocacy before a California parole board was not quite enough. Instead, he wanted as many people as possible to follow his plight.

His nonlawyer friend set up Web channels for the project. A website was created. Updates were made on Twitter. Messages were sent to Reich’s Facebook friends. The end result: the second year law student successfuly helped release a woman after she spent 29 years in jail and he gave internet communities front-row access as every event related to the project unfolded.

Although he’s not a “web expert”, Reich used online social networking as his backbone during the project. In an e-mail interview with the ABA Journal, he said he spent 22 hours a day on the case from Jan. 1 until the convicted woman walked out of prison. He estimates 50 percent was spent working the social media channels.

Social networking is an invaluable way to connect or re-connect with people for projects, networking and job searches. With websites like LinkedIn and the ABA’s Legally Minded, social networking has transcended from mere socializing to a form of professional communication. In Reich’s case, his social networking sites helped make his advocacy efforts a success.

Read the ABA's Complete Article on Reich.