A Lawyer will do anything to win a case, sometimes they will even tell the truth. – Patrick Murray
Spoiler Alert! For all of the soon-to-be obvious reasons, I would strongly advise Judge John Barsanti against reading this column until after the trial. Some folks seem to think I can be rather persuasive and I really don’t want to be the source of a mistrial.
I would similarly caution my readers to prepare for this piece inevitably veering into the insider baseball realm and it will likely go long, but how often do we get to analyze a high-profile local homicide trial? Most of them are plead out long before they get anywhere near a courtroom.
To set the stage, then 46-year-old Geneva resident Shadwick King allegedly strangled his wife, Kathleen, 32, in 2014 after he discovered thousands of texts implying she was having an affair with a man much closer to her age. Prosecutors claimed King subsequently dressed his wife in running clothes and dumped her body on the Union Pacific tracks in an effort to disguise the death as an accident or possible suicide.
But when a conductor noticed a woman lying on the opposite tracks with her head across one of the rails, he managed to alert the authorities and stop another train from hitting her and destroying all of the potential evidence.
Moving to 2015, King was convicted of first-degree murder by a jury and sentenced to 30 years in prison, but that conviction was overturned by the Illinois Supreme Court primarily because now-retired Judge James “Hang ‘em High” Hallock decided he could play second prosecutor and somehow get away with it.
The avalanche of reversible error included, but wasn’t nearly limited to Hallock allowing “expert” FBI witness Mark Safarik to testify to medical issues that were clearly beyond the scope of his expertise
If you’ll indulge me for a brief aside, despite repeatedly tearing Hallock a new one for his antics during that trial, word got back to me that my criticism didn’t daunt his appreciation for my general work. That kind of thick skin is a rarity among our men and women in black.
Getting back to 2022, with COVID repeatedly postponing the retrial, the 16th Circuit finally got around to hearing it this week.
The singular difference between the first and second bite at this apple is, instead of resorting to a public defender, King is represented by heavyweight DuPage County attorney Kathleen Zellner who specializes in overturning wrongful convictions.
“Hmmm,” I thought, “Despite the mountain of circumstantial evidence against him, perhaps King actually has a shot at being exonerated.” Kane County prosecutor Greg Sams may be an adequate attorney, but he’s no Kathleen Zellner and his fragile ego makes him quite ripe for the throwing-him-off-his-game picking.
All Zellner had to do was to apply her considerable voir dire (jury selection) skills to empanel a jury that would respond to her attempt to create reasonable doubt by putting the Geneva Police Department on trial.
And it wouldn’t have been all that difficult do, either, because the first officer on the scene was Sergeant George Carbray who’d look you in the eye and tell you he was an orphan with his mother standing right behind him. Not to mention the timeline involved in getting medical personnel to the railroad scene is questionable at best and a comedy of errors at worst.
But Zellner is tacking another tack entirely.
She barely questioned Carbray and she had to know that asking him “How many dead bodies have you seen” would be counterproductive. Like Carbray, most officers have seen hundreds of them because they regularly accompany ambulances on emergency medical calls.
Zellner also argued that Kathleen King was still alive when they found her on the tracks and that she’d walked or run there of her own volition, but she tripped or collapsed as a result of a .15 blood alcohol level from having “13 drinks” the night before.
Coming from a long solid line of alcoholic stock, I can hold my own with the best of them and I still run four days a week. But I wouldn’t be walking anywhere, much less running the morning after a 13-drink bender when my next day BAC level was twice the legal limit. And I certainly wouldn’t do it on an unstable stone railroad bed where I’d have to contend with those howling Union Pacific freight trains horns with a splitting headache.
Zellner also claims that expert testimony will show that Kathleen had rust and metal flecks on the bottom of her shoes proving she walked those tracks, but beyond the absurdity of her basic argument, how can any “expert” possibly prove the timing and specific source of that material?
She could’ve just as easily accumulated that “evidence” walking across the Third Street or Western Avenue tracks the day before.
But here’s the worst part of this defective defense strategy. If you’re going to weave a tale that pales in comparison the eminently more logical prosecution argument, then your only real shot is to present it to 12 people who aren’t smart enough to get out of jury duty. It’s one thing to instill reasonable doubt in one juror, but it’s another thing entirely to do it with a veteran felony court judge.
That makes Zellner’s bizarre decision to go with a bench trial even more baffling. It’s almost as if she’s trying to lose the case to set up grounds for an inadequate representation claim.
And if you’re going to go with a bench trial, then you really oughtta “shop” for a judge who will be more sympathetic to your cause, but that certainly ain’t 40-plus year career prosecutor and former state’s attorney John Barsanti who’s never taken a seat at the defense table. Remember, every prosecutor and defendant gets one free SOJ (substitution of judge) motion and any of the remaining felony court judges would’ve been far better choices.
The final irony is in the judge regard is, Ms. Zellner’s forte is issuing the kind of righteous indignation laced closing statements that would make a black megachurch pastor jealous. But as we’ve previously covered here, between Barsanti’s rampant ADHD and his vanity borne refusal to wear a hearing aid, God knows how much of that summation he’ll actually pick up.
Perhaps Zellner has the kind of legal ace up her sleeve that’ll make me look like a fool in the end, but those strict discovery rules make that highly unlikely. That’s why those Perry Mason moments are nothing more than myth.
Look, everyone can have a bad day, or for that matter a bad trial, but this defense strategy is beyond difficult to fathom, and whether you believed he’s guilty or not (he is!), it’s a vast disservice to a client who deserves zealous and reasonable representation. I understand that Zellner has taken on King’s case gratis for the publicity possibilities, but we all know that when it comes to attorneys, you tend to get what exactly you pay for.