Below is what Judge Joseph McGraw ruled in the criminal trial of McHenry County State’s Attorney and his assistant Joyce Synek:
STATE OF ILLINOIS)
COUNTY OF McHENRY)
IN THE TWENTY-SECOND JUDICIAL CIRCUIT
McHENRY COUNTY, ILLINOIS
THE PEOPLE OF THE )
STATE OF ILLINOIS, )
LOUIS A. BIANCHI and ) No. 10 CF 933
JOYCE C. SYNEK, ) 10 CF 934
EXCERPT OF REPORT OF PROCEEDINGS had in the above-entitled cause before the Honorable JOSEPH McGRAW, Judge of said Court, on March 23, 2011, in the afternoon session.
MR. THOMAS K. McQUEEN and
MR. HENRY C. TONIGAN, III,
Appeared on behalf of the Plaintiff.
BY: MR. TERRY A. EKL
Appeared on behalf of the Defendant,
Louis A. Bianchi.
DiBENEDETTO and KENDALL
BY: MR. ERNEST A. DiBENEDETTO
Appeared on behalf of the Defendant,
Joyce C. Synek.
(WHEREUPON, trial proceedings were reported but not transcribed.)
THE COURT: All right. Both defendants have filed a motion for a directed finding of not guilty at the conclusion of the State’s case.
The applicable standard in entertaining such a motion, trial court must consider the evidence adduced by the State in the light most favorable to the State when ruling on a motion for directed verdict or a motion for — the motion for not guilty at the conclusion of a bench trial.
I have considered the motions filed. I have considered the authority submitted. I have reviewed my notes. I have reviewed the exhibits that are entered into Evidence. And I find and order as follows:
As to Count I, there are defects in the pleading in Count I; specifically, it is not pled that there was an agreement. However, even not basing my ruling on the defect in the pleading, which I do find there is a defect, I do not find that there is sufficient evidence of an agreement. It is not pled,
and I do not find from the evidence that there is any direct evidence of an agreement between Defendant Bianchi and Defendant Synek.
I have considered the evidence to determine whether there is sufficient circumstantial evidence of an agreement. Is there sufficient evidence to inferentially establish the existence of an agreement?
I do not find that there is. The evidence merely raises a suspicion as to the existence of an agreement. The circumstantial evidence in this case does not establish nor does it exclude every other reasonable hypothesis for the actions of the — or the intent or agreement of the defendants. So, I do enter a directed finding in favor of the defendants as to Count I.
As to Count II, I do believe there is a defect in the pleading in Count II. It does not, as I believe the case law requires, indicate that the alleged official misconduct was committed by Mr. Bianchi in his official capacity. It does make reference to him being the State’s Attorney, but I do believe the authority submitted indicates that for official misconduct to be properly pled at the trial level, that it has to specifically allege that the misconduct or misdeeds were done in the official’s official capacity. That is not pled. I do find that is a defect.
Moreover, as to the theft of labor and services, the underlying offense or prohibited or forbidden conduct, I’ve examined the authority that’s been submitted, and it demonstrates to my satisfaction that anticipated labor of an employee is not the property of the employer, and, thus, diversion by a third party of the employee from his duty for his employer is not theft. But I don’t — or I should say alternatively or as an alternative to that structural defect in the charging document, I cannot find beyond a reasonable doubt that there is sufficient evidence that the defendants or the employees of the Defendant, specifically, the State’s Attorneys or managers were directed to perform political duties on county time.
I find that there is insufficient evidence that they were directed or deterred or misdirected from performing their duties for the County. I don’t find that the — it was without the consent of the County. I find that the State’s Attorney had the discretion or authority to utilize his staff in a manner that he would choose, even if it was during the work hours.
He was — and I’m referring specifically to 8.1 of the electronic communications provision, Exhibit 60 — that incidental or occasional use of these systems for nonwork purposes may be permitted at the discretion of the elected official or department head of the office that the employee or other agent performs work within.
I don’t find that Mr. Bianchi directed his employees to perform the campaign-related work during County time. And if on their own initiative or through misunderstanding or misdirection they chose to perform campaign-related work while at work or with their computer, that was a matter that was within the discretion of the elected official. I do not find that was a violation of law.
I don’t find that the statutory section cited pertaining to theft of property or services is applicable to the facts of this case, so I am entering a finding against the State in favor of the Defendant as to Counts II through XX.
I find that the managers meetings took place during nonbusiness hours. And to the extent that they took place during business hours, that their purpose was of a dual nature dealing with addressing public concerns, media concerns directed against the State’s Attorney and the office of the State’s Attorney.
I do not find that services or property of McHenry County were misappropriated as far as Defendant Bianchi goes as far as Count XXVI.
I do not find that there is sufficient evidence even viewed in the light most favorable to the State that Defendant Bianchi intended to deter Tom Carroll from testifying truthfully or fully. Reasonable men can disagree about what is a political document, as evidenced by these proceedings. I do not find that his disagreement with Mr. Carroll about what Mr. Carroll
proposed to present to the Grand Jury constituted an attempt by the Defendant to deter Mr. Carroll from testifying fully and truthfully.
The reasons set forth in Count I, I find in favor of — or I should say with regard to Mr. Bianchi.
I find in favor of Ms. Synek and against the State as to Count I as it relates to Ms. Synek.
As regards counts XXI, the perjury count, again, I’ve looked at the evidence in the light most favorable to the State, as I am required to do. There was no evidence that she was asked — that I could find in my notes — to do political-related correspondence on her County computer.
The question is have you been asked to do your County computer politically-related correspondence on behalf of Mr. Bianchi, and the answer is no. I couldn’t find anywhere where she was asked to do political-related correspondence on her County computer.
There is political-related correspondence I think on her County computer.
But insofar as her statement in response to the Grand Jury is alleged to be materially false, I don’t find that she was asked to do that on her County computer.
I find in favor of Ms. Synek on [Count] XXII and enter judgment of acquittal on that — XXI, on that count.
On Count XXII, the charging document alleges that and do you prepare correspondence that related — past tense — to Festa Italiana from your office in the State’s Attorney’s Office, and the answer was no. The question that was propounded contained in Exhibit 22 was and do you prepare — present tense — any correspondence that relates to Festa Italiana from your office in the State’s Attorney’s Office, and the answer was no.
Again, the questions have to be construed that — taking them as they were propounded, not past tense but present tense. So on July 2nd, 2010, when she testified before the Grand Jury, I could not find that she made a materially false statement in the present tense that she prepared or prepare in the present tense correspondence related to Festa Italiana on her office computer. I find in favor of Defendant Synek and against the State and enter judgment of acquittal as to that count.
As to Count XXIII, have you deleted in the last three years any documents which relate to political matters rather than the work of the State’s Attorney’s Office, and the answer was no.
I — I listened intently to Mr. Jerger’s testimony, and I did my best to follow it and to follow the exhibits that were tendered. And it appears as though there are some documents that were deleted. Even viewing the evidence in the light most favorable to the State, I could not find that Ms. Synek deleted those documents.
I’m not sure when — and I’m digressing somewhat — but I wasn’t sure after listening to his testimony or I wasn’t convinced beyond a reasonable doubt that — or did I think I could be based on the evidence presented — as to when the documents were created and how they were manipulated or moved or altered or overwritten during the various times they may have been accessed on the Dalby/Synek hard drive. So I cannot find that Defendant Synek is guilty of Count XXIII.
Moreover, as mentioned throughout, the ambiguity of the term political matter is subject to more than one interpretation. I cannot find she made a materially false answer to Count XXIII — or the question in Count XXIII.
Count XXIV: Have you changed your practices with respect to the drives on which you prepare documents or the locations within your computer filing system where you keep documents? Answer: No.
Again, as I’ve indicated, it was confusing listening to Mr. Jerger to ascertain when whatever was done was done, when it was changed and if it was changed, if anything had been deleted or moved or overwritten.
I don’t know what change in practices the special prosecutor was specifically referring to in that question. Accordingly, I cannot find even — I look at these questions in context. I cannot find that Mrs. Synek or Ms. Synek changed any practices about how she maintained the information on her computer.
Lastly, with regard to Count XXV as it relates to Ms. Synek, obstructing justice, as I mentioned previously, I think there is a defect in the charging document. The Court must at the trial stage look to make sure each and every element is properly pled. I do not find that the — all the elements have been pled in Count XXV — could not find an indication that the charge against her was stated that she did so with the intent to obstruct the prosecution of someone.
And I’m not going to infer or supply missing terms to a charging document.
The — As I said, even apart from the apparent defects in the charging documents, my ruling or conclusion would be the same. So each motion for each Defendant for judgments of acquittal or finding of not guilty are heard and granted in their entirety.
(WHEREUPON, further proceedings were reported but not transcribed.)
STATE OF ILLINOIS )
COUNTY OF McHENRY )
IN THE TWENTY-SECOND JUDICIAL CIRCUIT McHENRY COUNTY, ILLINOIS
I, Mary L. Krikorian, an Official Court
Reporter of the 22nd Judicial Circuit of Illinois, do
hereby certify that I reported in shorthand the
proceedings had in the above-entitled cause, and that
the foregoing is a true and correct transcript of all
the proceedings heard.