BLOOMINGTON - Prosecutors will try to fight an appellate court's reversal of a Gridley man's child pornography conviction, the county state's attorney said Tuesday. | Read prosecution's new Shoemaker petition (PDF)
McLean County State's Attorney Bill Yoder said a petition will be filed Friday with the Illinois Supreme Court in hopes the high court will revisit the standard of review for child pornography cases. The filing is connected with the case against Jeffrey L. Shoemaker, 53, who was convicted in April 2007 of five counts of creating child pornography and later sentenced to concurrent four-year sentences.
Appellate court justices in Springfield ruled May 20 there was nothing inherently lewd about the photos taken by Shoemaker and he didn't direct the actions of five nude, underage boys attending a birthday party. But in the ruling, the justices did fault Shoemaker's judgment in creating the images.
|Jeffrey L. Shoemaker|
At the time of his arrest, Shoemaker was the manager of the store at the Children's Discovery Museum in Normal.
He had film from the birthday party developed at Wal-Mart. Employees there alerted police, who arrested him when he picked up the photos in June 2006.
Scott Mulford, spokesman for Illinois Attorney General Lisa Madigan's office, said attorneys with his office reviewed Yoder's office's petition, which had been prepared by the state's attorneys' appellate prosecutor's office in Springfield. If the Illinois Supreme Court grants the petition, the attorney general's office would handle the appeal, he said.
The state alleges in the filing that the 4th District Appellate Court acted improperly in its review of the case and interpretation of the photographs taken by Shoemaker.
"On appeal, the 4th District failed to credit trial court's careful findings and analysis and reversed defendant's convictions for child pornography, finding that five photographs were not child pornography but rather examples of nudity without lewdness," the petition says. "In reaching this decision, the appellate court applied improper factors and substituted its judgment for that of the trier of fact."
Yoder did not return a call seeking further comment on the case.
Shoemaker told police he didn't intend to develop the film, and he thought he had thrown away the film used in photographing the boys at the party, authorities previously have said. He later testified he didn't think the photos were lewd, but admitted they were inappropriate.
Defense attorney Steve Skelton said the prosecutors are essentially asking the Illinois Supreme Court to change its own rulings, and appellate courts are usually hesitant to change precedent. Skelton cited a 1999 case, People v. Lamborn, which the 4th District Appellate Court justices also cited in their decision to review whether the photographs were lewd.
If the Illinois Supreme Court grants the prosecution petition, Skelton said he would be one of the attorneys representing Shoemaker. If the court does not grant it, he expects Shoemaker would be a free man in September, provided he is not released on bond before then.
Shoemaker remains incarcerated, and Skelton said he has filed a motion for the appellate court to set bond. The court has not set a hearing on that motion, he said.