“It would set the wrong precedent in every way.”
Those were the final words of Winnebago County Judge Joesph McGraw to Special Prosecutors Henry Tonigan and Thomas McQueen in response to their both wanting to be released from their duty to prosecute the second set of criminal charges against McHenry County State’s Attorney Lou Bianchi.
Both appointees of McHenry County Judge Gordon Graham wanted out.
McQueen filed his motion first and got to make his pitch before Tonigan, who picked him to assist in the prosecution.
McQueen argued that a letter from Bianchi attorney Terry Ekl putting him on notice not to destroy evidence that might be required in a post-trial civil suit would limit his ability to be an independent prosecutor. He said he had “a duty to step down and step back so the public won’t have any question about (my integrity).
McQueen then cited a series of cases in which prosecution had been shifted from the Federal court in Northern Illinois elsewhere because of “familial relations.”
“My judgment (in his role as a prosecutor) must not be questioned,” McQueen added.
“I have been threatened with a lawsuit. Under these circumstances, I cannot operaqte independently.
“I am asking to withdraw. I will work with Judge Graham to obtain new counsel.”
Having filed basically the same motion, Tonigan then explained that his father, who has Alzheimer’s, had been hospitalized for the first time just since he had filed his motion pointing to his need to spend more time with his ailing father.
“My role in this set of indictments has been minimal,” he explained.
“I had other issues on my plate other than (destroying) evidence,” he said, referring to the letter he had received from Ekl.
Judge McGraw referenced Tonigan’s previous request to Judge Graham to get out of the case and pointed out that he had excused him from having to appear in the case.
“I read the letter. It speaks for itself,” Judge McGraw said, pointing out that the possibility for a civil law suit against prosecutors, police officers, etc., exists in every criminal case.
“How is the fact that your received that letter put you on any different footing (than prosecutors) in any other case?” he askdd
“It’s different because the threat has occurred during the litigation before the trial,” McQueen replied.
“But the specter of it always exists, doesn’t it?”
“(This) goes beyond the pale,” McQueen answered.
“Maybe I should decide to bring a motion to dismiss the case (in order to protect myself). That would be an influenced decision to protect myself…financially.”
“If I adopt that reasoning, wouldn’t that put the defense in the drivers’ seat in every case…by merely making a threat against the prosecutor? Savvy litigators could say, ‘I’m going to sue him also,'” the judge observed.
“The motion should be entitled “Motion to get off a sinking ship,” Bianchi attorney Terry Ekl started out.
“Mr. Ekl has had months and months if he wanted to dismiss.”
Ekl pointed out that McQueen and Tonigan were “knee deep in Brady violations,” referring to the requirement for prosecutors to provide defense attorneys with evidence that would help the defense in a timely fashion.
“They brought the case. They should have to complete the case.”
Ekl pointed out that the case could be nolle prossed.
“They can nolle the case and it’s over (but) one or both of them should be there August 1st to prosecute the case. Mr. Tonigan is the man ultimately responsible for this fiasco.
“I don’t know how he has time to do that and not (this).”
Tonigan minimized any violation of the law in Grayslake. “An administrative office released some emails. That’s it.”
It was decision-making time for Judge McGraw:
“I think it would be setting the absolute wrong precedent to allow a defendant to control the course of litigation by sending a letter.
“That could go on indefinitely.”
Judge McGraw did not think the cases presented by McQueen about conflicts were “what we’re talking about here.”
The judge also did not think McQueen’s and Tonigan’s interpretation of the rules governing lawyers’ practice to be “a reasonable construction of these rules.”
“Your duties…are not changed or altered one iota (by Ekl’s evidence preservation letter).
“There is a strong (public interest) that this case move to a resolution on the merits.”
“It would be set the wrong precedent in every way.
“Heard and denied.”
Tonigan then asked if his presence could be waived and Judge McGraw agreed.
After the hearing Ekl was willing to talk to the Northwest Herald, First Electric Newspaper and Crystal Lake Patch reporters, as well as yours truly.
Ekl added that he had sent the letter to Quest International, the Special Prosecutors’ legmen, as well as to the two opposing attorneys.
He pointed out that McQueen and Tonigan had made his letter public by attaching it to their motions.
Under the speedy trial rule in Illinois, Bianchi’s trial must start by August 29th.
Concerning the Grayslake assignment, Ekl said, “I think what he said in the courtroom was not true.”
Ekl also predicted victory for his client.
“I feel 100% confident we will win.”
“Is there a possibility of a (civil) lawsuit? The answer is ‘Yes.'”
Asked about bills that have not been submitted to McHenry County from the Special Prosecutor for payment, Ekl said he would again subpoena Quest’s bill, but that opposing counsel could keep theirs secret until after the trial when they submit them to the McHenry County Board for payment.