Inadmissable evidence, closing argument errors, Adrian/Jones conflict form basis of appeal for new Bliefnick trial

QUINCY — The appellate defenders for convicted murderer Tim Bliefnick have filed a brief in the Office of State Appellate Defender, Fourth District, arguing many mistakes were made in Bliefnick’s May 2023 trial while asking for a new trial.

The 50-page brief was prepared by Catherine Hart, deputy defender with the Office of the State Appellate Defender, Fourth District, and James H. Waller, assistant appellate defender, who represent Bliefnick. It was filed on April 4 with Carla Bender, clerk of the Fourth District Appellate Court, in Springfield. It originally was due on Nov. 29, 2023, but a motion for an extension moved the date to June 10.

Becky Bliefnick, who had three sons with Tim Bliefnick, was found by her father in her home on Feb. 23, 2023. She was found dead after being shot 14 times. She was 41.

Bliefnick was convicted in May of murdering his estranged wife and received three life sentences on August 11. He now is lodged in the Menard Correctional Center in Menard.

The basis for Bliefnick’s appeal is based on three issues, according to Hart and Waller:

• Former Judge Robert Adrian admitted inadmissible evidence under the “forfeiture by wrongdoing” doctrine, without regard for whether that evidence was relevant or otherwise admissible. 
• Adams County Assistant State’s Attorney Josh Jones, who prosecuted the case, made representations to the jury of matters that were not in evidence. 
• Adrian denied the defense’s suggestion of conflict and allowed Jones to remain as the prosecutor in this case while Jones’ potentially adverse testimony against Adrian was pending in another matter before the Judicial Inquiry Board.

Inadmissible evidence allowed 

Hart and Waller argue that Adrian mistakenly allowed Jones to call multiple witnesses to testify about “irrelevant and inadmissible” statements purportedly made by Becky Bliefnick, introduced to demonstrate her state of mind towards her husband during two years of divorce litigation. Testimony from Nicole Bateman, Rebecca Spotts, Christina Moore, Sara Murphy, and Sarah Reilly (Becky Bliefnick’s sister) was referred to in the brief. 

Among some of Becky Bliefnick’s statements that were allowed were:

• “And yes, I absolutely worry he will try to take the kids some time, especially if I get awarded the custody I want. He will be pissed, and he will do whatever he feels like doing.” (to Bateman)
• “But I told my lawyer I either want an (order of protection) for myself and the kids or at least make a statement in court and on the record of what he might do, and his erratic behavior and constant lies facilitate the need for protection — on top of the fact that he has all our guns and ammunition, including mine.” (to Bateman)
• “I truly believe Tim has serious mental health problems and he is becoming more vengeful and unpredictable, and it scares me. But I’m scared to even try to get an order of protection because it will piss him off, and he will try to punish me somehow.”  (to Spotts)
• “If something ever happens to me, please make sure the number one person of interest is Tim as that is who would do something to me. I’m putting this in writing that I’m fearful he will somehow harm me, come after me or will try something to me that takes me away from the kids or the kids away from me. (to Reilly) 

“All of these statements were inadmissible, as the worries and concerns and state of mind of a purported victim are irrelevant to prove anything other than the propensity of the defendant to commit the crime,” the brief said.

Hart and Waller said Casey Schnack, attorney for Tim Bliefnick, objected to the admission of these “hearsay” statements for being irrelevant at both the pre-trial hearing and again at trial. Adrian ruled that the statements were “relevant, probative and admissible” in the pre-trial hearing, then denied the continuing objections at the trial.

“(Becky Bliefnick’s) state of mind was irrelevant to any issue before the court and served only to suggest that the answer to the ultimate question of Tim’s guilt can be derived from Becky’s opinions about his propensity to do so,” the brief said.

Hart and Waller also argue that Adrian mistakenly ordered Becky Bliefnick’s divorce attorneys, Dennis Woodworth and Jerry Timmerwilke, to turn over all of her confidential client files to the prosecution. They also argue Adrian mistakenly allowed those attorneys to testify to private communications with Becky Bliefnick during her divorce litigation without regard to the admissibility of those statements – which they argue were permanently protected by the attorney-client privilege.

Woodworth testified that Becky Bliefnick had told him that she wanted a gun returned to her from Tim for her protection due to her concerns about her husband. Timmerwilke testified that Becky Bliefnick had informed him that a requirement of Tim’s father, Ray Bliefnick, not to be allowed unsupervised around the children was “was non-negotiable with her.” Timmerwilke said he was expecting her to testify during the divorce trial about her finances, issues of parenting and parenting time, and maintenance. 

“(Adrian) failed in (his) duty to ascertain whether attorney-client privilege covered any of this evidence as a threshold matter and erred in its eventual admission of all of that evidence,” the brief said. “Further, Tim Bliefnick was denied the effective assistance of counsel when (Schnack) failed to ever object to any of this evidence and testimony – even when invited to do so.”

Hart and Waller argued that a client’s communications made in confidence to a legal advisor are permanently protected from disclosure unless the privilege is waived. 

“This privilege is recognized as one of ‘the oldest of the privileges for confidential communications known to the common law,’” they wrote in the brief, referring to multiple Supreme Court and Illinois Supreme Court cases.

Hart and Waller wrote that the issue was brought to Adrian’s attention when Timmerwilke and Woodworth asked for a court order allowing them to turn information over to the police. Adrian was advised by prosecutors that the Attorney Registration and Disciplinary Commission told Timmerwilke he needed a court order before he could talk to the prosecution about the divorce case. 

 “This mention of the ethical duty of confidentiality, which goes hand-in-hand with the attorney-client privilege, should have alerted everyone involved that Becky’s confidential legal files and the associated work product that the state was seeking in discovery would almost certainly be inadmissible, and thus likely undiscoverable, as well,” the brief said. 

“But neither the court, nor any of the five licensed attorneys involved, inquired about, researched or argued over whether Becky’s confidential legal files and her attorneys’ testimony about her litigation-related conversations would be barred by the attorney-client privilege.”

Hart and Waller termed Schnack’s defense as “unreasonable” when she didn’t sign a court order presented by Jones that allowed Timmerwilke’s and Woodworth’s testimonies.

“Schnack initially said yes to this question, but then, inexplicably, changed her mind and decided to rely entirely on whatever the state would decide to give her in discovery,” the brief said. “There may be many reasons for the defense attorney in a murder prosecution to choose not to interview a key witness, but there are no reasons for such an attorney to refuse to even have the option to do so that would align with any sound trial strategy.”

Hart and Waller also said Schnack failed to:

• Object to Timmerwilke and Woodworth turning over Becky Bliefnick’s private client file to the police.
• Object to the admission of their statements in Adrian’s determination of whether the forfeiture by wrongdoing doctrine applied.
• Object at the admission of their statements at the trial based on attorney-client privilege.

“The breach of attorney-client privilege between Becky and Timmerwilke and Woodworth resulted in incalculable prejudice to Tim,” the brief said. “It allowed the state to discover and introduce all of the evidence of motive in this case and laid the groundwork for the admission of all of the hearsay statements that were admitted under the forfeiture by wrongdoing doctrine. The breach allowed the jury to hear Becky’s attorneys tell them that she wanted the missing gun turned over to her because she wanted it to defend herself from Tim.”

Closing argument referred to matters not in evidence

Hart and Waller referred to People v. Watson, a 1981 case in Illinois, when saying unsworn testimony by the prosecutor in closing argument — a witness who is not subject to cross-examination — is not compatible with a fair criminal justice system. 

“That is exactly what occurred in this case,” they wrote.

They claim Jones gave unsworn testimony about what information had been or had not been released to the public in his rebuttal — when Schnack could not cross-examine those representations or respond in further argument.

In his rebuttal, Jones challenged a theory put forward by Schnack that Google search queries made on Tim Bliefnick’s computer could have been made after Becky’s death by a widower seeking information regarding the investigation into his estranged wife’s murder. 

“(Schnack’s) argument was proper and based on the evidence in the record and cannot be read to have invited the prosecutor to introduce new purported evidence during his rebuttal,” the brief said. 

Hart and Waller said the second largest collection of evidence relied upon by Jones at the trial was a series of websites that were visited and web searches that were conducted on Tim’s phone. Among the searches were for identifying if shotgun shells are shot out of a specific gun, opening a window from the outside with a crowbar and cleaning gunpowder off your hands.

Jones told the jury during his rebuttal that certain information had not been released to the public.

“One of the things about this trial that’s been complained about is how tight-lipped we’ve been,” he said. “If (Tim Bliefnick) was searching for this information after Becky was murdered, how did he know that a crowbar was used? He just got lucky and guessed? How did he know to even look about gunshot powder residue? He just got lucky and guessed? Nobody knew that a crowbar was used. That wasn’t released to the public. Nobody knew that a window was used. That wasn’t released to the public. Nobody knew that the neighbors didn’t hear shots, that an improvised silencer might have been used. That wasn’t released to the public. None of those things were released to the public, but they all appeared on his phone.” 

Hart and Waller wrote, “There was absolutely zero evidence admitted at trial regarding what information had or had not been released to the public or that anyone had been complaining about ‘how tight-lipped’ the prosecutors had been.”

Schnack objected to the admission of this evidence since no time- or date-stamps were associated with the vast majority of this activity on the phone, thus not providing a way to tell when the web traffic occurred. Adrian overruled Schnack’s objection, instructing the jury that they should decide what, if any, weight to give that evidence. 

During her closing argument, Schnack argued that the state could not tell the jurors when those searches took place or if they even took place before or after Becky died.

“If these searches took place after Becky’s death, then the searches should indicate that it’s nothing more than Tim looking into the investigation like half of the town did, and following the investigation as the news allowed us to follow the evidence,” Schnack said. 

Schnack argued in a post-trial motion that Jones made prejudicial comments and erroneous statements in closing arguments. In denying Schnack’s motion, Adrian said he had instructed the jury “to disregard any argument that is not based on the evidence at trial. The Court assumes that the jury followed that instruction, so there is no error in that argument.” 

Adrian also said the argument was made during Jones’ rebuttal, which was an answer to the argument made by the defense counsel, and “those are looked at much less strenuous than the original argument.” 

“Firstly, the idea that arguments made during the prosecution’s rebuttal are ‘looked at much less strenuous(ly)’ than the original argument is simply contrary to law,” Hart and Waller write. “Misstating evidence in rebuttal is, in fact, even more damaging since the defendant has no opportunity to make a response. Secondly, every modern jury in every single criminal trial is instructed that ‘any statement or argument made by the attorneys which is not based on the evidence should be disregarded.’”

Hart and Waller said that instead of confining his argument to the evidence, Jones introduced new testimony, through himself, to tell the jury that the prosecution had not made any of those details available to the public.

“To add insult to injury, the prosecutor even suggested that people had complained ‘in this trial’ about how tight-lipped the prosecution had been,” they wrote. “Clearly the state would not have complained about this, so the prosecution is basically suggesting to the jury they had kept these details from the defense and the defense had complained about it.”

Adrian allowed Jones to remain as prosecutor

While Adrian was the judge in Tim Bliefnick’s murder trial, proceedings were underway in which the Judicial Inquiry Board (JIB) had accused Adrian of improprieties. One of the primary victims of, and witnesses to, those improprieties was Jones — who also was prosecuting Tim Bliefnick.

Hart and Waller noted the JIB filed a three-count complaint against Adrian about 60 days before Tim Bliefnick was indicted and the final hearing on Adrian’s matter was held about 90 days before Tim Bliefnick was sentenced.

Tim Bliefnick was charged with murder on March 13, 2023. Schnack brought the potential conflict to the court’s attention three days later in a written filing. Hart and Waller said Adrian responded by sealing that filing, and all filings in the case, “due to the extensive publicity in this case.”

Adrian was denying an issue “that could affect this case,” Hart and Waller said.

“When (Schnack) filed a suggestion of conflict in this case, noting the troubling relationship and dual roles that Jones and Adrian must occupy in the two proceedings, the matter (which should have been patently obvious to the court) was officially brought to the court’s attention,” they wrote. 

“At that point, Adrian should have found that his sitting as the judge in a serious case in which Jones, whose supportive or damning testimony would be partially determinative of the rest of Adrian’s career, would create in reasonable minds a perception that the judge engaged in conduct that reflects adversely on his impartiality and recused himself. Adrian’s failure to recognize this equivalent of a per se conflict and either recuse himself or disqualify Jones was an abuse of discretion.”

Hart and Waller said the level and type of criticism that Jones levied at Adrian was of the “highest, most official, and most consequential that one could level at a sitting judge.” 

“This was not a case where an unsuccessful litigant, full of sour grapes, took to Facebook to proclaim, baselessly, that a judge was corrupt or incompetent,” they wrote. “The criticism that Adrian was the subject of, here, was grounded in fact, threatened Adrian’s livelihood and was made before the most formal regulating body that a sitting jurist can face, outside of a criminal prosecution.”

Hart and Waller said proceedings like those that led to Adrian being removed from the bench remain “fortunately rare,” but they are no less able to raise questions about his impartiality in a reasonable member of the public. 

“When a judge tells the attorney for a party ‘I can’t be fair with you,’ as Adrian told Jones, we should believe that judge, or at least understand that a reasonable member of the public would believe the judge,” the brief read. “Adrian’s self-awareness may have been keen here, but he had the remedy backwards. Jones was not the person that needed to “get out” while these cases were simultaneously pending.”

Hall and Waller further added, “Adrian’s lack of impartiality with Jones contributed to the commission deciding that Adrian should not serve as a judge on any case, anymore, and thus it should have been sufficient for him to realize that he should not sit on this case prosecuted by Jones in particular, either.

“ … Adrian had the opportunity to conserve judicial resources by addressing this conflict at the trial court level and by recusing himself from the case right away, rather than sealing even the suggestion of conflict away from public evaluation. He squandered that opportunity to do justice, as he did others. It is left to this court to provide the only remedy available. Thus, this court should remand the case for a new trial before a judge that may restore the public’s faith in this trial’s outcome and the judiciary itself.”

So what’s next?

A reply to the Bliefnick brief from David Robinson, chief deputy director at the State’s Attorneys Appellate Prosecutor’s Office in Springfield, is due July 15 — 35 days from the June 10 due date of the brief by the appellees (Hart and Waller filed it April 4). A reply brief from Hart and Waller is due July 29 — 14 days from the due date of the appellant’s brief.

The Appellate Lawyers Association’s “Guide to Illinois Civil Appellate Procedure” details the process for an appeal. After all briefs are submitted, the appellate court could grant oral arguments. The appellant speaks first, followed by the appellee, and then the appellant can address the appellee’s arguments during rebuttal. Each party is allowed up to 20 minutes to make their argument, and the appellant is allowed up to 10 additional minutes to rebut the appellee’s argument.

If any oral argument is held, the appellate court then will issue its decision in a “full, published, precedential opinion” or an “unpublished,” and generally nonprecedential, order.