McHenry County State’s Attorney Lou Bianchi’s defense attorney Terry Ekl has filed papers in court referring to ex parte communication with Judge Gordon Graham.

Ex parte communication occurs when one side of a court case communicates with the judge without the knowledge of the other side.

Bianchi’s attorney wrote,

“Special Prosecutor Henry Tonigan has stated in an ex parte communication with Judge Gordon Graham dated November 18, 2009 (attached as Exhibit B) that as of that date he and Mr. McQueen ‘have talked to a number of witnesses and some witness’s attorneys the past number of weeks’. He goes on to claim that:

‘….witnesses have sought to provide us information and data about additional possible illegal acts by Mr. Bianchi regarding the misuse or theft of County funds by means of Mr. Bianchi’s reimbursement practice through at least June of 2007. In addition, witnesses have advised that Mr. Bianchi’s staff performed political services for Mr. Bianchi while being paid by the County from 2006 through 2008. One witness has indicated that Mr. Bianchi utilized County vehicles for his personal and political use’”.

In attorney Ekl’s reply, which you can read in full here, he argues that “the Special Prosecutors illegally sought to expand their lawful authority as Special Prosecutors by engaging in ex parte communication with Judge Graham and without the filing of a petition sought to expand their authority. The full scope of this improper behavior is set forth in the Motion Dismiss.”

The argument points to the taking of a hard drive from the State’s Attorney’s Office on five minutes notice the day after the Grand Jury indictment was returned.

Ekl points to a 1993 court case which says, “the purpose of the subpoena must be to produce evidence for use of the grand jury.” Ekl further says the case (People v. DeLaire) “may not use the subpoena as a ‘ruse to obtain information.’”

“The issuance of this subpoena duces tecum by the Special Prosecutor was a clear abuse of the Grand Jury.”

The argument tells of the Special Prosecutors continuing “to use the Grand Jury to investigate this case by calling at least one witness, Richard Stilling, before the Grand Jury to provide testimony directly related to the accusations in the present indictment…It is improper for the Special Prosecutor to continue to investigate the matter contained in this indictment through the Grand Jury after the return of the indictment.” (The same case it cited.)

“Any investigation that focuses on the facts already covered by the indictment is improper because the inquiry of the Grand Jury has ended,” Ekl writes.

Next Bianchi’s attorney talks of the Special Prosecutor’s using the Grand Jury “to investigate Mr. Bianchi’s handling of individual criminal prosecutions. (Copies of media stories attached as Exhibit G.)” The phrase “leak to the media” is included in the paragraph.

“The Special Prosecutors have no lawful authority to use the Grand Jury to allegedly investigate individual cases prosecuted by the McHenry County State’s Attorney’s Office. It is particularly alarming when this unauthorized investigation makes its way to the news media in an obvious attempt to further diminish the Defendant’s reputation in the community from which potential jurors will be selected,” the brief continues.

Ekl next covers the part of the indictment which said that “the defendants did conspire with each other and with others known and unknown to the Grand Jury” to commit official misconduct and obstruction of justice.

Disclosure was ordered and the names of Ronald Salgado, Karen Rhodes, Michael McCleary and Nancy Prioletti were named, the court filing continues.

“As to all four (4) individuals, absolutely no evidence was presented to the Grand Jury from which any reasonable, fair-minded prosecutor could contend these individuals participated in the conspiracy charged in Count 1 of the Indictment.”

Ekl selects Bianchi Nancy Prioletti as an example, pointing out that her name only was mentioned three times “in response to witnesses before the Grand Jury which returned this indictment.

Read them for yourself in the full version published here.

“In a blatant and reprehensible act, these Special Prosecutors have disclosed to the entire community that Nancy Prioletti conspired with the Defendants and others to commit criminal acts based upon testimony before the Grand Jury which established that she was Lou Bianchi’s neighbor and that she served on his campaign committee,” Ekl writes.

In addition to Ekl’s complaint about the ex parte communication and improper use of the Grand Jury after the indictment was filed, Bianchi’s attorney is seeking the full Grand Jury transcripts.

“It is not for the Special Attorney to determine what is and is not material to the defense,” he writes. “Only the defense can possibly make such a determination.”

Ekl argues that the Special Prosecutors have failed “to present any legitimate reason why the transcripts should not be disclosed to the defense. Simply arguing ‘we don’t want to disclose the transcripts’ is nor a legitimate argument for the prosecution to make during a criminal proceedings when his liberty and future are at stake.”

Ekl points out the transcripts have been typed and are available.

“If no such misconduct occurred then there has been no harm. If, however, misrepresentations of the law or other prejudicial acts were committed by the Special Prosecutors the Defendant will in a position to assert his due process.”

In addition to the full Grand Jury transcripts, Bianchi’s defense asks for “all memorandum containing substantially verbatim reports of oral statements of witnesses, including handwritten notes.

The text of the Motion to Compel Discovery can be found here.