People v. Pelo

Filed 8/13/08 NO. 4-08-0136

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JEFFREY PELO, ) Nos. 06CF581
Defendant-Appellee, ) 06CF679
and )
THE PANTAGRAPH and EDITH BRADY LUNNY, ) Honorable
Intervenors-Appellants. ) Robert Freitag,
) Judge Presiding.
_________________________________________________________________

JUSTICE COOK delivered the opinion of the court:

Interveners-appellants, The Pantagraph newspaper and

its reporter Edith Brady Lunny (Pantagraph), filed a petition to

intervene and gain access to an evidence deposition in a criminal

case, People v. Pelo (Nos. 06-CF-581 and 06-CF-679 (Cir. Ct.

McLean Co.)). On November 19, 2007, before the trial date in

Jeffrey Pelo's case had been set, the trial court granted

Pantagraph's petition to intervene but denied access to the

evidence deposition. Pantagraph appealed. We affirm.

I. BACKGROUND

The underlying criminal case, People v. Pelo (Nos. 06-

CF-581 and 06-CF-679), involves an accused stalker who allegedly

committed sexual assault against several different victims. Pelo

was first taken into custody for the underlying criminal case in

June 2006. A potential witness in the case, Scott Galuska,

reportedly saw a person near the residence of one of the victims.
Because Galuska was scheduled to leave the country for military

service, the State moved to depose Galuska in an evidence deposi-

tion (134 Ill. 2d R. 414). The defense did not object and the

trial court entered an agreed order, sanctioning the right of the

parties to take the deposition.

In September 2007, the parties conducted Galuska's

deposition in the courthouse. The location of the deposition was

dictated by the fact that defendant Pelo, who had a right to be

present to confront and cross-examine witnesses against him, was

in custody. Following the deposition, the trial court ordered

that the original, unedited deposition videotapes would be held

in the evidence vault of the circuit clerk. The docket entry

that orders the tapes to the evidence vault references an accom-

panying written order, but the record does not contain that

order.

Pantagraph had been reporting the facts and circum-

stances surrounding the Pelo case. Pantagraph learned that

Galuska reportedly saw a person near the residence of one of the

stalking victims and that Galuska had recently been deposed.

Pantagraph filed a petition to intervene and gain access to the

unedited tapes of the Galuska deposition. In its petition to

intervene, Pantagraph argued that (1) it had a right to intervene

pursuant to section 2-408 of the Code of Civil Procedure (735

ILCS 5/2-408(b) (2006)), and (2) the Fourth District has recog-

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nized that intervention is the appropriate method for newspapers

to present access issues to the courts, citing People v. LaGrone,

361 Ill. App. 3d 532, 838 N.E.2d 142 (2005); 735 ILCS 5/2-408(b)

(West 2006) ("Upon timely application anyone may in the discre-

tion of the court be permitted to intervene in an action: (1)

when a statute confers a conditional right to intervene; or (2)

when an applicant's claim or defense and the main action have a

question of law or fact in common"). In its companion petition

to gain access to Galuska's deposition, Pantagraph cited several

federal civil cases supporting the disclosure of pretrial discov-

ery materials, citing, among others, American Telephone & Tele-

graph Co. v. Grady, 594 F.2d 594, 596 (1979), and Fed. R. Civ. P.

26(c) ("General Provisions Governing Discovery: Duty of Disclo-

sure; Protective Orders"). Pantagraph further argued that, due

to the nature of the underlying criminal case, the contents of

Galuska's deposition were potentially of vital importance to the

public.

On November 19, 2007, before a date for Pelo's criminal

trial had been set, the trial court held a hearing on Panta-

graph's petitions to intervene and gain access. The court

granted Pantagraph's petition to intervene for the purpose of

requesting access to the Galuska deposition, but it ultimately

denied Pantagraph access to the Galuska deposition. In so

finding, the court noted that the taking of an evidence deposi-

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tion in a criminal case is an unusual occurrence. The court

noted that, in these circumstances, the deposition was not a

scheduled court hearing open to the public, and no significance

should be afforded to the fact that the deposition took place in

the courthouse as a matter of convenience to defendant Pelo. As

the court stated: "It was *** a gathering of attorneys and the

parties and the witness for the taking of an evidence deposition.

The [c]ourt was not involved."

The court further stated that, in criminal cases,

evidence is not in the public realm until it has been admitted at

trial. The court cited Supreme Court Rules 415 (134 Ill. 2d R.

415) and 207 (166 Ill. 2d $. 207) for this proposition, which

govern the custody and filing of depositions and other discovery

materials:

"[The Galuska deposition] has not been admit-

ted into evidence. It has not been received

by the [c]ourt. It is simply housed in the

clerk's office because Supreme Court Rules

[415 and 207] require it to be housed there.

It is, therefore, this [c]ourt's opinion that

the deposition is a single piece of evidence;

that releasing it at this point would essen-

tially suggest that, that anybody who wants

to look at evidence in any criminal case

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 would have a right to do so. I don't think

there is any [f]irst-[a]mendment[,] [right-

of-access] issue here because *** nothing has

occurred in open court with relation to this

deposition to this point."

However, the court added that if, at a later time, Galuski's

deposition were presented to the jury or if Galuski testified,

Pantagraph would of course be free to report on the matter at

will.

This interlocutory appeal followed. 188 Ill. 2d R.

307(a)(1) (allowing interlocutory appeal as of right in the event

of an interlocutory order of the court refusing an injunction).

Pantagraph filed an initial brief, the State filed a brief in

response, and Pantagraph filed a reply brief. Defendant-appellee

Pelo did not file a brief. As of April 8, 2008, the date

Pantagraph filed its initial appellate brief, the date for Pelo's

criminal trial still had not been set.

II. ANALYSIS

A. Jurisdiction Under Rule 307(a)(1)

Pantagraph argues that the trial court's order denying

Pantagraph access to the Galuski videotape deposition "effec-

tively enjoined" it and the public from obtaining a copy of the

tapes, thereby triggering coverage under Rule 307(a)(1). 188

Ill. 2d R. 307(a)(1). Rule 307(a)(1) allows an appeal to be

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taken to the appellate court from an interlocutory order of the

trial court "granting, modifying, refusing, dissolving, or

refusing to dissolve or modify an injunction." 188 Ill. 2d R.

307(a)(1). An injunction is a "'prohibitive, equitable remedy

issued or granted by a court at the suit of a party complainant,

directed to a party defendant in the action, or to a party made a

defendant for that purpose, forbidding the latter to do some act

*** which he is threatening or attempting to commit.'" People v.

Reynolds, 274 Ill. App. 3d 696, 698, 654 N.E.2d 535, 537 (1995),

quoting Black's Law Dictionary 705 (5th ed. 1983).

As a threshold question, the State challenges this

court's jurisdiction to consider Pantagraph's interlocutory

appeal under Rule 307(a)(1). 188 Ill. 2d R. 307(a)(1). The

question to ask in determining whether this court has jurisdic-

tion under Rule 307(a)(1) is whether the court's denial of access

can be said to be an "injunction" as defined above. To answer

this question, we must examine the merits of the case, i.e.,

whether the presumptive right of public access to judicial

proceedings and documents that have been filed with the court

applies to the Galuska evidence deposition. If the presumptive

right of access does not apply to the circumstances of this case,

then the trial court has not "enjoined" Pantagraph from accessing

what it would otherwise have a right to examine. It seems

illogical to decide a case on jurisdictional grounds if one needs

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to reach the merits of the case in order to do so. See Nelson v.

Miller, 11 Ill. 2d 378, 392, 143 N.E.2d 673, 680 (1957) (stating

it would be an unusual result to have the jurisdiction of the

court depend upon the outcome of a trial on the merits). There-

fore, we will decide this case on the merits.

We note, however, that the State also challenges

Pantagraph's jurisdiction by implying that Pantagraph should not

have intervened in a criminal case to assert a right of access to

the deposition but instead should have filed a separate civil

action, such as a complaint for declaratory judgment, to obtain

access to the evidence deposition. The State cites State v.

Cianci, 496 A.2d 139, 146 (R.I. 1985), which held that permissive

intervention "has no place in a criminal proceeding." The

State's citation to Cianci is misleading because Cianci concedes

that other jurisdictions find intervention to be the proper

vehicle for a newspaper to allege a constitutional and/or common-

law violation of its right of access to all judicial proceedings,

including depositions. Cianci, 496 A.2d at 146 ("there are

jurisdictions that have permitted newspapers to intervene in

criminal prosecutions for the limited purpose of questioning an

order of the trial court sealing depositions"). Illinois seems

to be one of those jurisdictions that takes interlocutory appeals

concerning right-of-access issues. In LaGrone, the court allowed

the press to intervene in a first-degree murder case for the

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purpose of questioning an order of the trial court denying public

access to a hearing on a motion in limine. LaGrone, 361 Ill.

App. 3d 532, 838 N.E.2d 142. When the trial court denied the

newspaper access, an interlocutory appeal followed. LaGrone, 361

Ill. App. 3d at 534, 838 N.E.2d at 145.

B. On the Merits: No Right of Access

The first amendment embodies a right of access to court

records and criminal proceedings. Skolnick v. Altheimer & Gray,

191 Ill. 2d 214, 231-32, 730 N.E.2d 4, 16 (2000) (regarding court

records in general); LaGrone, 361 Ill. App. 3d at 535, 838 N.E.2d

at 145 (regarding criminal proceedings). This constitutional

right presumes the public's right to inspect court records that

have "'historically been open to the [press and] public'" and the

disclosure of which would further the court proceeding in the

case at hand. Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 16,

quoting United States v. Corbitt, 879 F. 2d 224, 228 (7th Cir.

1989) (bracketed words eclipsed in Skolnick but appearing in

Corbitt). The presumption can be rebutted by demonstrating that

suppression of the public record is necessary to protect a higher

value and is narrowly tailored to serve that interest. Skolnick,

191 Ill. 2d at 232, 730 N.E.2d at 16.

In addition to the constitutional right of access, a

parallel common-law right of access has developed. Skolnick, 191

Ill. 2d at 230, 730 N.E.2d at 15. Under common law, a presump-

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tion exists in favor of allowing the public to inspect and copy

public records and documents, including judicial records and

documents. Skolnick, 191 Ill. 2d at 230, 730 N.E.2d at 15. The

right of access to court records enables the public to monitor

the functioning of the courts, thereby ensuring quality, honesty,

and respect for our legal system. Skolnick, 191 Ill. 2d at 230,

730 N.E.2d at 16. However, the public's right of access is not

absolute, and the court has the supervisory power over its own

records and files to deny access at its discretion where the

court files may become a vehicle for improper purposes.

Skolnick, 191 Ill. 2d at 231, 730 N.E.2d at 16.

Finally, the Illinois legislature has codified the

public's right of access as follows:

"All records, dockets[,] and books required

by law to be kept by such clerks shall be

deemed public records, and shall at all times

be open to inspection without fee or reward,

and all persons shall have free access for

inspection and examination to such records,

dockets[,] and books, and also to all papers

on file in different clerks' offices and

shall have the right to take memoranda and

abstracts thereto." 705 ILCS 105/16(6) (West

2006).

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 It does not seem to us that the evidence deposition at

issue here is a "judicial record" or part of the "criminal

proceeding itself" to which the public has a constitutional,

common-law, or statutory right of access. As stated by the trial

court, the unedited evidence deposition at issue here has not

been submitted into evidence and has not been played in open

court.

The taking of an evidence deposition in a criminal

trial is an unusual occurrence. Rule 414 governs the taking of

evidence depositions in a criminal case:

"If it appears to the court in which a

criminal charge is pending that the deposi-

tion of any person other than the defendant

is necessary for the preservation of relevant

testimony because of the substantial possi-

bility it would be unavailable at the time of

hearing or trial, the court may, upon motion

and notice to both parties and their counsel,

order the taking of such person's deposition

under oral examination or written questions

for use as evidence at a hearing or trial."

134 Ill. 2d R. 414(a).

An evidence deposition in a criminal case shall be taken in

accordance with the rules of taking an evidence deposition in a

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civil case. 134 Ill. 2d R. 414(b). The defendant and defense

counsel have the right to confront and cross-examine any witness

whose deposition is taken. 134 Ill. 2d R. 414(e). The Federal

Rules of Criminal Procedure contain nearly an identical rule for

the taking of evidence depositions in a criminal case. See Fed.

R. Crim. P. 15.

Although we have found no published Illinois case that

has ruled on whether a right of access attaches to evidence

depositions in a criminal case before the deposition has been

introduced at hearing or at trial, several federal jurisdictions

relying on Rule 15 hold that there is no right of access under

such circumstances. Fed. R. Crim. P. 15. Some courts have held

that the right of access never attaches to the videotape of the

evidence deposition itself, that the media cannot copy or broad-

cast it, and that the media, which has no right over and above

that of the general public, may only have access to the evidence

deposition at the time and in the manner it was delivered to the

jury in the courtroom. See In re Application of American Broad-

casting Cos., 537 F. Supp. 1168, 1170-72 (D.C. Cir. 1982) (where

Jodie Foster moved to prevent public access to her evidence

deposition in a criminal prosecution against John Hinckley, Jr.,

the court held that the recording of the deposition was not

encompassed by the common-law right of access to judicial records

and that broadcasters could not copy the recording of the deposi-

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tion); United States v. McDougal, 103 F.3d 651, 652 (8th Cir.

1996) (where media organizations appealed from the denial of

their applications to access a recording of President Clinton's

deposition testimony, the court held that, as a matter of law,

the videotape itself was not a judicial record to which the right

of public access attached). Even more liberal interpretations of

the right to access have not allowed the media access to a taped

evidence deposition with all the copyrights that typically come

with the right of access until after the video deposition has

been shown to the jury. See In re Application of CBS, Inc., 828

F.2d 958, 959-60 (2d Cir. 1987) (reasoning that the press had a

right to attend open court and view the videotape for itself).

The facts in McDougal provide a useful illustration.

In McDougal, the President's evidence deposition was taken, and

the court gave the parties and the media 30 days to file briefs

as to how the deposition would be used at trial. McDougal, 103

F.3d at 653. During the 30-day period, counsel for the parties

reviewed the transcript of the entire deposition and agreed to

edit certain portions. McDougal, 103 F.3d at 653. The tran-

script and the videotape were edited accordingly, and the edited

version of the deposition was played to the jury in open court.

McDougal, 103 F.3d at 653. The courtroom was filled to capacity,

and the media had an opportunity to view the video at that time.

The edited written transcripts of the deposition were admitted

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into evidence, made part of the record, and released to the

public after trial. McDougal, 103 F.3d at 653. The video itself

was never entered into evidence, and the right of access to the

video itself never attached. McDougal, 103 F.3d at 656.

As in McDougal, it is still possible that the deposi-

tion at issue here may be edited before any form of it is entered

into evidence and/or read to the jury. Rule 414 provides that

the evidence deposition may be used as evidence, but does not

provide that it automatically attains the status of evidence and

is part of the judicial record just by being taken. 134 Ill. 2d

R. 414. A judge was not present when witness Galuski's evidence

deposition took place. Galuski may have made inadmissible

statements in the deposition that will be excluded if and when

the State seeks to admit some or all of the deposition.

The cases cited by Pantagraph do not change our deter-

mination. In United States v. Berger, 990 F. Supp 1051 (C.D.

Ill. 1997), reversed and remanded by In re Associated Press, 162

F.3d 503 (7th Cir. 1998), the court considered the media's right

to access the Illinois Governor's evidence deposition, which was

taken in camera during the middle of the trial. There, the

underlying criminal case involved a defendant charged with 16

counts of mail fraud. Berger, 990 F. Supp. at 1052. Due to

extenuating circumstances after the trial had already begun,

including an ill juror and the Governor's travel schedule, the

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parties agreed that the Governor's testimony would be taken by

video deposition and played to the jury at the appropriate time

in the trial. Berger, 990 F. Supp. at 1052. The newspapers

moved for access to the Governor's deposition before it had been

played to the jury. Berger, 990 F. Supp. at 1052. The court

held the newspapers could not view the videotape until the jury

did, noting that early release of the deposition could prejudice

the defendant's right to a fair trial where the jury had not been

sequestered, especially if the defendant decided not to offer the

deposition as evidence at trial after all. Berger, 990 F. Supp.

at 1053-54.

Pantagraph contends Berger indicates that the right of

access applies to an evidence deposition before it is played at

trial and that the only reason the Berger court did not allow

access was due to the potential for prejudice. We disagree. The

Berger court noted that other jurisdictions have held that the

common-law right of access does not extend to a videotaped

deposition. Berger, 990 F. Supp. at 1054 n.3. It seems as

though the Berger court found the question of prejudice to be the

easier way to refute the newspaper's petition for access, but it

did not rule one way or the other whether the right of access

actually attached. Berger, 990 F. Supp. at 1054. Moreover,

Berger is distinguishable because the videotaped deposition in

that case was taken in camera, whereas the deposition in the

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instant case had no judicial supervision whatsoever.

The remainder of the cases that Pantagraph cites in

support of the proposition that a right of access exists are

slightly off point, as they are civil cases that do not involve

the media's right to intervene and gain access to evidence

depositions in criminal cases. See, for example, American

Telephone, 594 F.2d at 595 (concerning modification of a protec-

tive order so that nonparty litigating similar issues against the

defendant in a separate case could have retroactive access to

discovered documents for purposes of economy); Fed. R. Civ. P.

26(c) ("General Provisions Governing Discovery: Duty of Disclo-

sure; Protective Orders").

Because the right of access has not attached to the

Galuski evidence deposition, the trial court did not err in

denying Pantagraph access to the videotaped deposition.

III. CONCLUSION

For the aforementioned reasons, we affirm the trial

court's order.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.

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