Jim Dey: What to make of 'motions in limine'

Jim Dey: What to make of 'motions in limine'

The defense says it doesn't want the prosecution to use unspecified unflattering information about a man charged with murder in an upcoming trial.

The prosecution replies that it has no intention of using it, except perhaps in rebuttal after presenting its case-in-chief.

The defense responds, "We don't trust the prosecution to keep its word." That's why it asked a McLean County court to rule the information off limits in advance.

That, in essence, is the core of a dispute stemming from a high-profile Bloomington murder case, one that might be making a legal mountain out of a molehill.

If so, it's a fascinating molehill.

Kirk Zimmerman, a retired State Farm Insurance employee, is charged with the December 2014 murder of his 53-year-old former wife, Pam Zimmerman. An accountant and financial adviser, she was found shot to death in her office just a few days after her engagement to a Chicago-area man was disclosed.

The 58-year-old Zimmerman was arrested about eight months later after an intensive police investigation. Although no trial date has been scheduled, the prosecution's case is expected to be built on circumstantial evidence, the widely known mutual animosity between the former spouses and statements that Zimmerman made to police during their probe of the case.

Also drawing considerable attention — and speculation — is the unknown contents of what are cryptically described as "the fourth and fifth motions in limine" — the secret information the defense wants off the table.

The information is generically described in court filings as "sensitive, private, and/or inflammatory about (Zimmerman) and others who may be called as witnesses or who otherwise are connected to him."

"According to (Zimmerman), given the high level of media attention to his case, the evidence sought to be excluded would taint the jury pool if it became public and his right to a fair trial." That's how appellate Judge John Turner characterized the defense request.

Nothing more is publicly known about what's contained in the "motions in limine," and that's the way trial Judge Scott Drawzewski wanted it. He ordered the two motions sealed, putting them off limits for public inspection.

Two weeks ago, however, the 4th District Appellate Court in Springfield unanimously found that Drazewski erred in his ruling and sent the matter back to him for further review. Appellate Judge Turner wrote the decision that was joined by fellow Judges Lisa Holder White and Carol Pope.

Drazewski improbably found there is no legal "presumption of access" to court filings in criminal cases. Of course, there is.

After the Bloomington Pantagraph and the Illinois Press Association appealed, the appellate court held that both precedent and the First Amendment to the U.S. Constitution establish a legal presumption that court filings are open to public inspection and must be available for review unless opponents of disclosure present valid reasons for not doing so.

"The good news is that they have a heavy burden to meet," said Springfield lawyer Donald Craven, who represented the newspaper and press association.

Craven said Zimmerman's lawyer must show that continued secrecy is "the only means available" to ensure the defendant's right to a fair trial.

A motion in limine is a motion made either by the prosecution or defense at the start of a criminal trial, requesting that the judge rule that certain evidence may not be introduced in trial.

Even if explosively unflattering, that's not sufficient to justify keeping the information from the public. Trial judges have tools available for solving that problem; the best one is conducting a thorough examination of potential jurors to make certain they can reach a just verdict.

"Despite the fact that motions in limine address potential evidence for trial, they are contained in the general criminal case file and in the general record on appeal," Turner wrote, finding that such motions play a "positive role in the functioning of the criminal justice process."

"Moreover, public access to evidentiary decision making 'enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system,'" Turner wrote.

It's not clear when Drazewski will take up the question of making the motions public.

He's scheduled four days of hearings — May 15-18 — to consider whether the prosecution can call numerous witnesses, including the murder victim's divorce lawyer, to testify about the animosity during and after the divorce between the accused and the victim.

Absent a solid argument for maintaining secrecy by the defense, the appellate ruling foreshadows public disclosure of the motions' content no matter whether the prosecution wants to introduce it into evidence at trial.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

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