Thursday, August 4, 2011

Could Illinois Supreme Court's Reasoning Behind "In Re DOMINIQUE F" Nullify the Latest Decision on Louis Bianchi?

Winnebago County Circuit Judge Joseph McGraw ruled another swift directed verdict in the second bench trial of McHenry County State's Attorney Louis Bianchi this week for official misconduct charges. This follows McGraw's first directed verdict in the trial held last March favoring McHenry County's top law enforcer.

Directed verdicts, considered unusual to occur even once, allowed Bianchi defense attorney Terry Ekl to win both trials without presenting any evidence.

Special prosecutors Henry Tonigan and Thomas McQueen have the option to appeal McGraw's latest decision. Should they decide to press forward, they could object to McGraw's refusal to step down last April when the judge's impartiality was questioned. A successful appeal would nullify McGraw's acquittal of Bianchi this week, regardless of any merits of his decision. Double jeopardy would not apply, as the trial would be a nullity.

To date, special prosecutors have given no indication of appealing.

McHenryLeaks was the first outlet to publish that McGraw had received roughly $20,000 from the Illinois Office of the State's Attorneys Appellate Prosecutor (ILSAAP) in recent years for instructing seminars. Multiple potential conflicts of interest with those associated with Bianchi and ILSAAP have been discovered by McHenryLeaks in government records, many of which have never been addressed in mainstream news. (Click titles in sidebars on the right.)

McGraw received $3,125 for services from Oct. 25 - 29, 2010, the same dates of ILSAAP's "Basic Trial Advocacy Program" held in Springfield.  The course schedule of this training seminar found on ILSAAP's website shows that McGraw was part of a three-person panel discussion on pre-trial motions with Amy Dalby's prosecutor, David O'Connor of Orland Park,  on Oct. 25th -- three days after McGraw's first hearing involving Bianchi. Dalby was a key witness in Bianchi's first trial.

McQueen motioned last April that McGraw recuse himself as he had been paid by the same state agency that was involved in other aspects of Bianchi's case. McGraw denied the request stating that there was no quid pro quo asked for, expected or received. The Chicago Tribune reported, "'These accusations,' ...McGraw said, 'when considered in context, do not create even the appearance of impropriety.'"

McHenry County is currently represented by ILSAAP in oversight and objections of bills submitted by outside special prosecutors in the same cases McGraw presided.  Yet days after Bianchi was indicted last September, ILSAAP approved an amicus curiae brief on behalf of a former Edgar County state's attorney, represented by Ekl, for public payment of his legal fees in an on-going case. 

Coincidentally, McHenry County is the driving force behind HB 2558, a bill which passed in the Illinois House last April. The bill, which received only one reading in the Senate, would give ILSAAP considerably more power in deciding which special prosecutions would move forward in Illinois and who would handle them. The bill also ropes in fees paid to special prosecutors, arguably providing county boards more influence on investigations and prosecutions. Applying the brakes on funding could effectively shut down cases.

In Re DOMINIQUE, F., 145 Ill. 2d 311, (1991)

The Illinois Supreme Court ruled in 1991 that a change of venue in any civil action may be had if "any party or his or her attorney fears that he or she will not receive a fair trial in the court in which the action is pending because the judge is prejudiced against him or her, or his or her attorney."

"It is well settled that venue provisions are to be liberally construed, with an end toward effecting rather than defeating a change of venue, particularly where the impartiality of the trial judge is called into question," the judgment reads.

The Court concluded that a trial judge improperly denied a minor's petitions for a change of venue. "Were a petition for change of venue is timely filed and in proper form, it must be granted and any order entered after its presentation is a nullity."

(For background information, links are embedded. Click the red type within the article.)

McHenryLeaks asks:

The Chicago Tribune wrote, "Bianchi told supporters outside the McHenry County Courthouse in Woodstock that the outcome was a victory for all Illinois state's attorneys. Had he been convicted, he said, every public prosecutor would be subject to indictment for unpopular decisions that came with the job." Is this why Bianchi has been a top priority of ILSAAP since 2007?

Was it proper and ethical for McGraw to act as his own judge and jury when requested to step down when questioned on his impartiality?

Why, of all judges out there, was one appointed who was being paid by an entity representing the interests of state's attorneys, even during the period he was presiding over the Bianchi cases?

Is it proper for ILSAAP to represent McHenry County in the appeal of fees for Tonigan and McQueen, while that same county is clearly the driving force of HB 2558 -- a bill that would reduce fees paid to special prosecutors by counties and give ILSAAP considerably more power and funding? 

HB 2558 arguably makes it impossible for a special prosecution of a state's attorney to take place in the future. Is this why ILSAAP has closely assisted Bianchi? Did ILSAAP start off supporting Bianchi to protect the establishment of state's attorneys, which eventually morphed into an opportunity to fulfill additional motives? Why was Bianchi a top media priority for ILSAAP? Why are there so many questionable associations with ILSAAP and McHenry County?

HB 2558 would give county boards more control of the funding in special prosecutions, which consequently controls the case. County boards in Illinois could effectively decide which public officials would be investigated and prosecuted, giving the role of judge and jury to a board. All such decisions could be politically motivated. If the decision to move forward on a special prosecution of a state's attorney or law enforcer was placed in the hands of ILSAAP itself, they could protect one of their own. Is this wise legislation? 

Who wrote the language of HB 2558