McHenry County State’s Attorney Lou Bianchi’s criminal defense counsel Terry Ekl has no respect for the two Special Prosecutors appointed by McHenry County Judge Gordon Graham.

After a hearing Thursday morning during which Judge Graham said he had no authority to rule on anything now that the McHenry County Board’s attorney from the Appellate Prosecutor’s Office, Charles Colburn, had appealed his refusal to reconsider the fees being paid Henry Tonigan and Thomas McQueen, Ekl referred to the two as “Abbott and Costello.”

Tonigan wants out in the worst way.  He says his ill father needs more of his time.

After Judge Graham said he no longer had jurisdiction in the case, Tonigan still tried to press his motion to withdraw as Special Prosecutor on the criminal case against Bianchi.

His plea bore no fruit.

Fellow Special Prosecutor McQueen wants to get paid.

He urged Judge Graham to order the McHenry County Board to pay him $10,000 he had been “shorted,” plus $5,25.60 in costs.

He had his unpaid out-of-pocket expenses down to the penny.

“Our appeal has an entry order of March 14,” Appellate Prosecutor Charles Colburn told the Judge.

“Once the notice has been filed, I’ve lost jurisdiction,” Judge Graham preceded the pleas of the two Special Prosecutors.

What’s  the appeal based on?

“When you find a judge that takes a state statute that is the law now and inserts the old statute, it is totally irresponsible,” McHenry County Board Chairman Ken Koehler explained after the hearing.  He noted that the county had won an Appellate Court case on a liquor license revocation he made and expected to win this one on how much the Special Prosecutors should be paid.  Koehler stressed that the appeal was on all fees, not merely the ones that have not yet been paid.

Ekl had come prepared to argue his motion for six Bianchi-supporting citizens to intervene in the court proceeding which led to the appointment of Tonigan and McQueen, not to mention their now-contested payments.

After the short hearing, Ekl revealed that the two opposition attorneys had agreed the citizens had a right to intervene.

But, because of the county fee appeal’s having been filed, his preparation for argument went for naught.

Since Appellate Courts more often than not take their time making decisions, Ekl believes his citizens’ motion to dismiss Tonigan and McQueen will be moot.

Ekl said the citizens were just trying “to get someone competent on the case.”

After looking at the case, Ekl surmised, they would dismiss it.

“They’d be laughing about it.”

Bianchi’s trial is set for June 27th. Ekl does not intend to delay it to wait for an Appellate Court decision on the county’s fee motion.

Besides dismissal of the Special Prosecutors, Ekl’s other motion is to unseal the file. It would still be relevant.

For tomorrow afternoon’s hearing, McQueen is going “judge shopping,” to put it in Ekl’s words or, as he put it, “in lawyer language.”

“It’s usually the defense doing it,” he pointedly said. “It’s just an effort to get a good judge off the case.”

McQueen is asking that Rockford Judge Joseph McGraw either remove himself from the criminal case or be removed from it.

Using contents published on the blog “McHenry Leaks,” McQueen presents circumstantial evidence linking Bianchi to McGraw through attendance at a training seminar put on by the Appellate Prosecutor’s Office and an Assistant State’s Attorney in McHenry County who used to work in Winnebago County, where McGraw sits.

In biting words, Ekl reply attacks McQueen’s motion:

“It is unclear what the Special Prosecutors are seeking and under what legal authority they are seeking that relief.”

After court, Ekl said the McQueen motion was “legally insufficient.”

He says that no allegation of impartiality exists in McQueen’s motion.

“Clearly, the special prosecutors cannot be attempting to suggest that the court should recuse itself based on the writings of some unknown blogger on ‘McHenry Leaks.’

“Such a proposition would not only be ridiculous, but also contrary to Illinois law.

“The special prosecutors’ Motion is insufficient on it face because it does not state a legal basis for the Court to disqualify itself and instead simply makes allegations that have no relevance in this case or the parties involved in this case.

“Therefore, the Motions should be stricken or in the alternative, denied.”

Ekl also notes any substitution of judges must be requested within ten days after a judge gets a case.

March 9th was the date that clock started running, Ekl calculates.

Bianchi’s attorney suggests that McQueen may be thinking of civil, rather than criminal rules of procedure.

Continuing his attack on McQueen’s motion, Ekl points out that any motion to replace a judge must be accompanied by sworn affidavits, not an anonymous blog post on a website.

Court cases are cited for denying improper petitions without a hearing.

Ekl also notes that there is nothing in the motion that alleges that the Judge is personally prejudiced against the Special Prosecutors or the State or, if so, how.

“For purposes of a motion to substitute, prejudice is defined as “animosity, hostility, ill will, or distrust’ towards a defendant (or in this unique situation, the State of Illinois).”

Simply because the Appellate Prosecutor represents McHenry County in the fee case is “irrelevant,” Ekl argues.

Bianchi’s defense counsel argues that McQueen’s motion is “not brought in good faith,” but merely to delay the criminal proceedings.

Ekl gets specific:

Thomas McQueen. Photo Credit: First Electric Newspaper.

“It is absolutely astounding that licensed attorneys, appointed s special state’s attorneys to represent the State of Illinois, who are bound by the Illinois Code of Professional Conduct and the Illinois Supreme Court Rules, would file a Motion based on a blog written by an unidentified source and posted on a website entitled ‘McHenry County Leaks.'”

In a footnote, Ekl points out the first post on the blog was April 16th and wonders if the blog was created for the purpose of “manufacturing” the motion.

Ekl asks the Special Prosecutors to reveal their connection to the blog and who pointed them to this source of information.

As a parting shot, Ekl contends that McQueen’s motion “is sanctionable, not only by this Court, but by the Illinois Attorney Registration and Disciplinary Commission.”