GORDON RANDY STEIDL, Plaintiff, v. CITY OF PARIS et al., Defendants 05-2127 United States District Court, C.D. Illinois March 17, 2009 Counsel G. Flint Taylor, Janis M. Susler, Ben H. Elson, Janine Hoft, Peoples Law Office, Chicago, IL, Michael Metnick, Cherry Frazier & Sabin LLP, Springfield, IL, for Plaintiff. James G. Sotos, Elizabeth A. Ekl, John J. Timbo, The Sotos Law Firm, P.C., elizabeth kathleen Barton, Ancel Glink Diamond Bush Dicianni & Krafthefer PC, Chicago, IL, for Defendants. Baker, Harold A., United States District Judge ORDER *1 The plaintiff, Gordon Randy Steidl, has filed a motion for protective order to preserve evidence [210] and a supplement to that motion [220], and a motion for order to show cause why the Illinois State Police (ISP) defendants should not be held in contempt of court for failure to comply with a subpoena [256]. The Office of the State's Attorney Appellate Prosecutor (OSAAP) has filed a motion to intervene [261]. I. Steidl contends that during a deposition of ISP evidence custodian Sue Voges, Steidl's attorneys learned that in 2001 the ISP disposed of a videotape pertaining to the Rhoads homicide case. Voges did not know the contents of the destroyed videotape, could not think of any reason that would justify the destruction of evidence in an ongoing homicide case, and there was no shortage of space to store such evidence. The defendants rejected Steidl's attempt to come to an agreement that no further evidence be destroyed. Steidl's counsel moves the court to enter a protective order to preserve all evidence related to the Rhoads homicides and the claims and defenses in this action. They ask the court to instruct the ISP defendants' counsel to notify the ISP that they are not to destroy any evidence related to the Rhoads murders and the claims and defenses in this civil action. They also seek disclosure of every person and agency in possession of evidence related to the Rhoads homicides and the claims and defenses in this civil litigation. Steidl pared down his arguments by filing a supplement to the motion for protective order [220], along with a list of the items to be protected, filed under seal. The ISP defendants initially opposed the entry of a protective order. They stated that although one videotape was destroyed, a copy of the videotape was given to Steidl's trial counsel, John Muller, and to Steidl's postconviction investigator, Bill Clutter, who, when deposed, stated that the videotape copy was given to Steidl's counsel in this civil case. Clutter was deposed in the presence of Steidl's attorney, Jan Susler, three days before she filed the motion for a protective order to preserve the evidence. That the videotape copy had been turned over to her office was a fact omitted from her motion. In response to the supplement, the ISP defendants and the ISP have no objection to entry of an order requiring them to preserve certain documentary evidence. That evidence is listed in Exhibit #1 [227] to the defendants' response to the supplement [226].[1] The ISP defendants and the ISP object to the entry of a protective order as to physical evidence, listed in Exhibit #2 [228] of their response to the supplement. They argue that a criminal investigation into the Rhoads homicides is ongoing, and those physical items may be subjected to forensic testing, including DNA testing, which necessarily involves some destruction. *2 There is a “longstanding public policy against federal court interference with state court proceedings.” Younger v. Harris, 401 U.S. 37, 43 (1971). Although the documentary evidence can be viewed and copied in a nondestructive way, the same is not true of the physical evidence. The State of Illinois has an important interest in prosecuting those involved in the Rhoads murders. This court will not interfere with that interest. The motion for protective order [210] is granted in part and denied in part. All documentary evidence, including but not limited to the items listed in Exhibit #1 [227], shall be preserved. The physical evidence listed in Exhibit #2 [228] shall be preserved in its present condition, except for any alteration that may arise from forensic testing pursuant to the ongoing criminal investigation. II. Steidl has served a subpoena on the Illinois State Police for all documentary, photographic, audio, video, electronic, and other evidence in the Rhoads homicide case, including the original investigation and all subsequent investigations by any and all law enforcement and prosecution agencies and individuals up to and including January 8, 2008, for the purpose of inspection, inventorying, measuring, photographing, videotaping, and otherwise copying such evidence, located at ISP Zone 5 vault and at any and all other locations. This subpoena includes but is not limited to the items in the attached letter from Plaintiff's counsel Jan Susler to ISP counsel Iain Johnston dated September 4, 2008. (Emphasis in original.) The list of items attached to the September 4, 2008, letter includes documents and other written material, audiotapes, videotapes, photographs, and slides.[2] The ISP defendants told Steidl's counsel that they objected to the subpoena because (1) it was overly broad, unduly burdensome,[3] and not reasonably calculated to lead to the discovery of admissible evidence; and (2) the material sought was protected by the law enforcement privilege; but (3) without waiving the privilege, it would copy all of the “documentary, photographic, audio, video, and electronic evidence” in its possession as of December 8, 2007[4] (one month before the cutoff specified by Steidl's counsel). There were conditions, however; Steidl and his criminal codefendant Herbert Whitlock must waive any possible chain of custody or foundational objections that might be made in any subsequent proceedings,[5] and there would be no production of physical evidence such as hair, fingernails, and garments potentially contaminated with blood. The ISP defendants' counsel cited the high risk of contamination of physical evidence if turned over to Steidl's counsel for inspection. Moreover, counsel said that Steidl and Whitlock's waiver of chain of custody or foundational objections as to physical evidence would not be binding on any other individuals that might be charged – interfering with any potential prosecution of others – and the OSAAP intended to send all physical evidence to a third party laboratory for re-testing. *3 The ISP defendants argue that Steidl is a primary suspect in the Rhoads homicides, and the investigation being conducted by the OSAAP is ongoing. There have been multiple proceedings since 1987 – trials, direct appeals, postconviction proceedings, postconviction appeals, and federal habeas corpus proceedings – that occasioned the repeated opening of sealed evidence bags and containers. As a consequence, the labels are becoming illegible. In fact, Bill Clutter, Steidl's investigator, was at one time granted access to the evidence, requiring the opening of evidence bags and containers. The ISP defendants claim they are not trying to “clean up latent, existing chain of custody issues” (as argued by Steidl) but want Steidl to waive any argument that may be created by reopening these containers and rendering their labels even more illegible. They prepared a stipulation in which Steidl would waive his chain of custody and foundational objections arising from yet another opening of the evidence bags to comply with the subpoena, but Steidl's counsel refused to agree. The ISP defendants attach the proposed stipulation [260-2, pp.76-77] (Exhibit T). Exhibit T mentions a subpoena for “all documentary, photographic, audio, video, electronic, and other evidence” (¶ 1) and “all evidence related to the Rhoads homicide” (¶ 2) (emphasis added). Subsequent paragraphs state, in pertinent part, 4. Plaintiffs Steidl and Whitlock understand and expressly agree that the duplication process will involve ISP personnel opening the evidence bags, breaking the evidence seals, and handling the evidence. 5. Plaintiffs Steidl and Whitlock each expressly waive any possible chain of custody or foundational objections with respect to this evidence in these or future proceedings, both civil and criminal. (Emphasis added.) 6. Plaintiffs Steidl and Whitlock agree that the process of opening the evidence bags and duplicating the bags' contents, as well as duplicating any other documentary evidence, will not affect the admissibility of the evidence in any matter, including the above-captioned cases, as well as any potential future criminal proceedings. Exhibit T, d/e 260-2, pp. 76-77. The stipulation lacks clarity. Paragraph 1 refers to subpoenaed evidence; paragraph 2, “all evidence;” paragraph 4, “the evidence,” paragraph 5, “this evidence,” and paragraph 6, “any other documentary evidence.” Even if limited to the subpoenaed evidence, paragraph 5 suggests that Steidl and Whitlock must waive all chain of custody and foundational objections, not limited to objections arising from compliance with this subpoena. It is understandable that Steidl might object to the proposed stipulation. However, the relief sought (a rule to show cause why the ISP should not be held in contempt of court, and reasonable costs and attorney fees) is unnecessarily harsh at this point. The motion for a rule to show cause [256] is denied. The parties are ordered to confer and draft more precise stipulation language; they shall do so within fourteen days of the date of this order. If, within two weeks, they are unsuccessful, they may file cross-motions and submit their own proposed language for the court's review. The court will then enter an order, which may be to neither party's satisfaction. III. Finally, the OSAAP has filed a motion to intervene and assert the investigative privilege in regard to another subpoena served by Steidl. The OSAAP now carries the burden of prosecuting any charges which may result from the ongoing investigation into the Rhoads murders.[6] The OSAAP states that the subpoena is “very similar” to the subpoena served on the ISP. However, the declaration of Michael Vujovich suggests that the subpoena differs substantially. The OSAAP did not attach the subpoena, hampering the court's review and analysis. Steidl contends that OSAAP appears to be referring to a subpoena that was withdrawn (which could render moot some, but not all, of OSAAP's objections). Consequently, the motion to intervene [261] is denied at this time, with leave to refile, within seven days of the date of this order, a revised motion, memorandum, and a copy of the subpoena.[7] Steidl shall have seven days thereafter to file his response. The OSAAP need not comply with the subpoena until the court has ruled on the revised motion, provided that the revised motion is timely filed. CONCLUSION *4 1. The motion for protective order [210] is granted in part and denied in part. All documentary evidence, including but not limited to the items listed in Exhibit #1, docket entry 227, shall be preserved. The physical evidence listed in Exhibit #2, docket entry 228, shall be preserved in its present condition, except for any alteration arising from forensic testing; 2. The motion for a rule to show cause [256] is denied. The parties are ordered to confer and draft more precise stipulation language; they shall do so within fourteen days of the date of this order. If, within two weeks, they are unsuccessful, they may file cross-motions and submit their own proposed language for the court's review; and 3. The motion to intervene [261] is denied at this time, with leave to refile, within seven days of the date of this order, a revised motion, memorandum, and a copy of the subpoena. Entered this 17th day of March, 2009. Footnotes [1] There may be more documents than reflected on Exhibit #1. Steidl's list of subpoenaed documents includes a taped interview with Dennis Uselman that is not inventoried. [2] Most of the items are included in the defendants' Exhibit #1. Steidl's counsel asks that prison overhears “be produced to the respective plaintiffs, so as not to further erode the attorney-client privilege.” [3] Counsel estimates that it would take 40 hours to comply with the subpoena. Due to the impending retirement of the ISP vault custodian who was most familiar with the Rhoads homicide evidence, the ISP defendants considered the request burdensome. [4] On that date, the entire case file was turned over to Whitlock's criminal counsel in anticipation of re-prosecuting him for the Rhoads homicides. Counsel for ISP and the ISP defendants represented to Steidl's counsel that he understood that no evidence was logged in during the intervening month; nonetheless, he wishes to go with the earlier date. If this is true, quibbling over the date is pointless. But to be consistent with the subpoena served on the Office of the State's Attorneys Appellate Prosecutor, the December 8, 2007, date should apply. [5] The ISP and ISP defendants sought a waiver of any chain of custody objections from the time of the murders through all future criminal proceedings. While it is understandable that the ISP defendants would be concerned about Steidl's counsel creating a chain-of-custody problem via the subpoena, the waiver was far more broad than that. [6] Steidl, Whitlock, and others are currently under investigation. [7] If the subpoena contains confidential information, OSAAP may file the subpoena under seal.