In THE PEOPLE OF THE STATE OF ILLINOIS v. ANGELA FULMER, No. 4-12-0747, February 25, 2013, Appellate Court of Illinois, Fourth District. Appellant, Jesse R. Gilsdorf, was counsel for a defendant charged with unlawful delivery of a controlled substance when the State's Attorney, before the preliminary hearing on that charge, gave Gilsdorf a video depicting his client, among others, interacting with undercover law enforcement officers at the time of the alleged offense. Gilsdorf later posted the video on at least two social media websites. The trial court found that Gilsdorf had violated Illinois Supreme Court Rule 415(c) (eff. Oct. 1, 1971) by his actions and, as a sanction, ordered Gilsdorf to remove the video from the websites.
Gilsdorf appealed, arguing that under the particular circumstances of this case, the trial court erred by finding he violated Rule 415(c). The Court disagree and affired.
BACKGROUND
¶ 4 On Febebruary 17, 2011, the State charged defendant, Angela D. Fulmer, by information with the Class 2 felony of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2010)), alleging that on or about June 14, 2010, she knowingly delivered to a confidential source less than 50 grams of a substance containing hydrocodone, a Schedule II controlled substance. On February 28, 2011, Gilsdorf entered his appearance on defendant's behalf, and the trial court scheduled a preliminary hearing for March 29, 2011.
¶ 7 On April 20, 2011, the State filed a motion for sanctions for noncompliance with Rule 415(c). That rule reads as follows:
"(c) Custody of Materials. Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to other such terms and conditions as the court may provide." Ill. S. Ct. R. 415(c) (eff. Oct. 1, 1971).
The State's motion alleged that on or about April 11, 2011, the contents of the video previously tendered to Gilsdorf appeared for public viewing on the Internet website YouTube, as well as on defendant's Facebook page, under a file headed, "cops and task force planting drugs." The State's motion also alleged that the only person having custody of a copy of the video who could have caused its dissemination was Gilsdorf.
¶ 8 In May 2011, the trial court conducted a hearing on the State's motion at which, in response to the court's question asking how the video got on YouTube, Gilsdorf responded, "I caused it to be placed there." Gilsdorf explained that he copied the video to a computer and uploaded that computer file to YouTube. He acknowledged that the video also appears on his Facebook page, which states the following:
"Hey, one and all, want to see cops and their snitch planting drugs? This is the cop's video showing how their snitch brings drugs into a room, and after the victim leaves, putting [sic] the drugs in the middle of the table. Two parts because of space limits. Cops are the West Central Drug Task Force, Zack Orr, as seen in the video. Notice how the paperwork is all ready to be signed, even though they haven't even debriefed their snitch."
At the hearing, Gilsdorf was hardly apologetic for his actions, claiming that they were necessary because of improper conduct by the State's Attorney and police. He explained that, "simply put, [this] acts as a check on possible abuse by the prosecution."
¶ 10 At the conclusion of the hearing, the trial court found that Gilsdorf intentionally posted "the discovered material, the [video] on the Internet[, and his doing so] was a violation of [Rule] 415(c), that it was material furnished to the attorney pursuant to supreme court rules regarding discovery."
Gilsdorf complied with the court's directive to remove the video from the Internet, he filed two different pro se motions to reconsider in May and June 2011. Then, in March 2012, attorney Walker R. Filbert entered his appearance on behalf of Gilsdorf and filed a second amended motion to reconsider the sanction order.
¶ 12 In July 2012, the trial court conducted a hearing on these motions, at which Filbert explained that he was essentially asserting two different grounds for why the court should reconsider its sanction order.The Court explained the controlling law.
Supreme Court Rules 411 and 415(c)
¶ 21 At the time of these proceedings, Illinois Supreme Court Rule 411 (eff. Mar. 1, 2001) read as follows:
"Rule 411. Applicability of Discovery Rules
These rules shall be applied in all criminal cases wherein the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary. *** They shall become applicable following indictment or information and shall not be operative prior to or in the course of any preliminary hearing."
(The supreme court revised Rule 411 in December 2011 (Ill. S. Ct. R. 411 (eff. Dec. 9, 2011)) but those revisions do not affect our analysis in this case.)
¶ 22 Rule 415(c) reads as follows:
"Rule 415. Regulation of Discovery
* * *
(c) Custody of Materials. Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide." Ill. S. Ct. R. 415(c) (eff. Oct. 1, 1971).After analyzing these two different grounds the court upheld the sanction order and affirmed the trial court's judgment.
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