McHenry County Blog

Today McHenry County blog looks at March, 2011, billings from Quest International.

Quest is the company selected by McHenry County Special Prosecutor Henry Tonigan in his unsuccessful quest to convict McHenry County State’s Attorney Lou Bianchi of felony criminal offenses.

Robert Seigalski, Lee Flosi, Patrick Hanretty, Gerald Theis, James P. Reilly and Dan Jerger bill the Special Prosecutors $135 per hour, except for some travel, which Scigalski notes he bills at $70 an hour. The others do not bill $70 for travel time.

Here are the billings for March of this year:

3-1-11 2 hours – Jerger: Prepared discovery materials. Verify and label copies of evidence for production.

3-2-11 3.5 hours – Jerger: Prepared discovery materials. Prepared, traveled to and returned from 901 Warrenville road, Suite 176, Lisle, IL 60532. Dropped off evidence CD’s to Mary Nash, assistant to Terry A. Ekl of Ekl Williams PLLC. Updated McQueen telephonically.

3-3-11 3.75 hours – Scigalski: Call to Nichole Owens / call to McQueen / work on subpoena requiring internal communications

3-5-11 4 hours – Scigalski: Work on subpoena compliance making sure all McHenry relevant emails & notes are gathered, copied and notebooked.

3-6-11 4 hours – Scigalski: Meeting at Tonigan’s office / review with T. Carroll

3-6-11 3 hours – Jerger: Prepared materials for discovery.

3-7-11 6 hours – Jerger: Prepared materials for discovery. Reviewed case details.

3-8-11 9 hours – Jerger: Prepared materials for discovery production. Prepared, traveled to, and returned from 102 South Wynstone Park Dr. Suite 100, North Barrington, Il 60010. Met with Judge Henry “Skip” Tonigan and Tom McQueen to discuss case updates and strategy.

3-9-11 10 hours – Jerger: Prepared materials for discovery. Reviewed case details

3-10-11 1.5 hours – Flosi – Served subpoena on Keith Chval, Clarendon Hills, IL

3-10-11 9 hours – Jerger: Prepared materials for discovery. Reviewed case details

3-11-11 1.5 hours – Flosi – Served subpoena on Ronald Weiss, Arlington Heights, IL.

3-11-11 4 hours – Jerger: Prepared discovery materials. Prepared, traveled to and returned from…Lisle…Dropped off T2 evidence tape and T4CD to Tracy Kreczmer with Ekl williams PLLC. Updated McQueen telephonically and email.

3-12-11 1 hour – Jerger: Reviewed case details.

3-13-11 4 hours – Scigalski: At Tonigan’s Office, Participate in interview/ trial prep of A. Dalby. Again, later meeting at Tonigan’s office with McQueen for interview of Ron Weiss/ email Ownes/ call to Rein.

3-13-11 – Jerger: Prepared, traveled to, and returned from…North Barrington. Met with Judge Henry “Skip” Tonigan and Tom McQueen to discuss case. Reviewed case materials.

3-14-11 2 hours – Scigalski: Prep for and conference call with Tonigan and Nicole Owens and with McQueen

3-14-11 8 hours – Jerger: Reviewed details in preparation for meeting with Tom McQueen.

3-15-11 8 hours – Jerger: Prepared, traveled to, and returned from…North Barrington. Met with Tom McQueen to discuss case. Reviewed case materials.

3-16-11 1 hour – Flosi – Attempted to locate Sgt. Harris for subpoena service.

3-16-11 5 hours – Jerger: Reviewed case details in preparation for trial.

3-17-11 8 hours – Scigalski: Continue work on trial materials. Continue review for confirmation of production of all reports and notes beyond original order.

3-17-11 5 hours – Jerger: Reviewed case details in preparation for trial.

3-18-11 7.5 hours – Scigalski: Review ints – Weiss, Sullivan & Rein / prep PDF’s & email/ contact and email McQueen/ Call to Mist. Sgt. J. Jarris/ Call Chval w email/ confirm Subpoena – Harris

3-18-11 1 hour – Flosi – Served subpoena on Sgt. Harris, c/o Dispatch Desk, Illinois State Police H.Q., 9511 W. Harrison, Des Plaines, IL.

3-18-11 5 hours – Jerger: Reviewed case details in preparation for trial.

3-19-11 2.5 hours – Scigalski: At HT’s [Henry Tonigan's] office- Meeting to debrief Carroll

3-19-11 8 hours – Jerger: Prepared, traveled to, and returned…from North Barrington. Met with Tom McQueen to discuss case. Reviewed case materials.

3-20-11 2.5 hours – Scigalski: At HT’s office – Meeting with McQueen to debrief Dalby

3-20-11 5 hours – Jerger: Reviewed case details in preparation for trial.

3-23-11 Bianchi, Synek Acquitted of All Charges

The grand total for the February and March, 2011, bill from Quest International was $46,875.04.

April tomorrow.

When McHenry County State’s Attorney Lou Bianchi held his post-acquittal press conference in front of the Courthouse, he didn’t say whether he would run for re-election.

When confronted with a question about filing a civil suit against Special Prosecutors Henry Tonigan and Tom McQueen from First Electric Newspaper’s Pete Gonigan, he also demurred, even after the reporter pointed out that the indictments had not been the result of “spontaneously combustion.”

The crowd was told that Bianchi intended to think about a week about whether to run for re-election and whether to sue those responsible for the, oh, so very special prosecutions.

With his $75 Boulder Ridge Country Club fund raiser coming on Thursday, August 18th, Bianchi will probably use that forum to announce his 2012 intentions.

Will having been vindicated in court about as clearly as possible in not one, but two trials be enough?

Or will the second-term State’s Attorney seek restoration of his good name through the ballot box as well?

And, what about a civil suit?

What would be its basis?

Also outstanding is whether Bianchi will ask the county to pay for his legal bills to defense attorney Terry Ekl. From what I have heard, he has every right to do so, since the official misconduct charges were brought against him in his official capacity as State’s Attorney.

“Second verse, same as the first,”

was the line running through my had as I drove home from the Courthouse.

Judge Joseph McGraw had just acquitted McHenry County State’s Attorney Lou Bianchi of the two remaining counts of official misconduct brought by Special Prosecutors Henry Tonigan and the assistant he picked, Thomas McQueen.

Just as he did on the first try to “get” Lou Bianchi.

A third count in the current case about a young man who was allowed into a First Time Offender program that started after his crime was committed was so weak that McQueen withdrew it at the beginning of the trial.

After arguments and rebuttals for a directed verdict of acquittal had been made, McGraw withdrew to consider and formulate his decision. What he announced would be a 45-minute recess lasted another 20.

The result was a list of reasons behind his decision and an outlining of his thought processes as the “finder of fact,” this being a bench trial.

First McGraw decimated the use of the Equal Protection clause of the Illinois State Constitution.

McQueen had argued that miscreants not “related” (defined quite loosely) to State’s Attorney Investigator Ron Salgado were being discriminated against by Salgado’s purported attempt to assist a 19-year old great step-nephew.

“Felony defendants are not a protected class,” McGraw said referring to part of his decision when he dismissed the Special Prosecutor’s charges against Salgado.  Those “not related to Ron Salgado” are not “an identifiable class.”

If McQueen’s arguments were accepted, McGraw said, “It would create (a situation in which) anyone at any time could assert they are a class of one.

“That would swallow up the role of (the Equal Protection under the law clause).”

McGraw ruled as “a matter of law Counts 1 and 3 fail.”

But, as in the first case in which Bianchi assistant Joyce Synek was a co-defendant, McGraw went further.

Bianchi’s attorney explained that not only was there a failure to charge Bianchi properly, there was a failure to proved that Bianchi “committed an act of of official misconduct and he did something he knew by a matter of law he was forbidden to do.”

Addressing McQueen’s contention that Bianchi had a duty to recuse (not participate) in the two cases because of Rule 12 of the Rules of Professional Conduct for Illinois attorneys.

McGraw noted, “It is not plead or alleged, but it’s important to note that I don’t think it applies.”

He read the text, which talks of conflict of interest resulting from concurrently representing more than one client.

“I do not find there will be a material risk (of such a conflict),” he concluded.

McGraw then focused on how Bianchi had acted in both cases. He concluded that no evidence had been presented that either case had not been “handled in the ordinary course of business.”

No special treatment in the disposition of the cases was what I heard.

If the woman wanted the man prosecuted he would have been.

The 4-year, instead of 5-year sentence had been requested by the Public Defender and agreed to by the Assistant State’s Attorney.

McGraw when “even if” then.

“Even if there was evidence that he was (Salgado’s) nephew (even in the colloquial sense), there was no material impediment to his (Bianchi’s) doing his duty.”

Same with the other case, the Judge said.

“I can comment on whether there could be an appearance of impropriety. That’s something that has been offered.

“In each case, the ordinary course of business (led to the ) ultimate outcome.”

In each case, he continued, “the ultimate outcome had been initiated by the defendant’s attorney (and) ultimately received the blessing by Mr. Bianchi and Mr. Harmon (the Public Defender in the 19-year old’s narcotics case) and the disposition was actually entered.”

“None of this affected how Mr. Bianchi performed his duties. It was a matter of “Damned if you do and damned if you don’t”

“Were Mr. Bianchi’s duties to McHenry County citizens (impaired)?

“I cannot find that he had a duty to recuse himself, that, even if he had a duty to recuse himself, that this was not a violation of law.”

The Judge said that recourse on a complaint that a State’s Attorney should have, but did not recuse himself from a case “would be a complaint to the Attorney’s Registration and Disciplinary Commission.”

“I’m not saying reasonable people can’t disagree, (but) I do not find a violation or that (it) amounts (to a) violation of law sufficient (to rise to a criminal offense).”

He said further that the “remedy is for the judge to deal with instanter or notify the ARDC.

“By my ruling, I do not intend to ratify or agree with every decision and what happened in the State’s Attorney’s Office, the remedy (is the ARDC).”

McGraw then spoke of the duty of state’s attorneys.

He said that without a “free standing basis no prosecutor could do his or her job.”

The use of the Rule in question in this case “is not the intention of the Rule.”

He pointed out that the Rules of Professional Conduct are not designed for “civil liability and, one would infer, criminal liability.”

McGraw advised the courtroom that whether what Bianchi did was proper or not was “for the electorate to decide whether he is properly discharging his duties.”

Among findings of fact were that

• the “nephew” is not related to Mr. Salgado
• it has not been proven there has been a disadvantage based on membership in a class of persons (not being a friend of Salgado or a friend/contributor of Bianchi)
• Mr. Bianchi did not fail supervise (non-attorney) Salgado
• there was not any evidence that anyone was discriminated against who were not in the “classes” McQueen argued existed

Then the judge entered a judgment of acquittal.

Monday, McQueen could have completed his case, but announced two witnesses remained.   After Monday’s presentation of witnesses, McQueen concluded his case without calling one of the two.

The reason may have been the first, the mother of a young man for whom McQueen charged Bianchi had lowered the sentence from 5 to 4 years because of a personal relationship, testified that Bianchi had told the family the result of the plea agreement outside her son’s courtroom and nothing else. The other announced, but missing witness was the 19-year old’s grandfather, whose name appeared on a Bianchi fund raising invitation list.

After McQueen closed his case Bianchi defense attorney Terry Ekl commenced a blistering of McQueen’s case.  You can read his entire motion here.

Back in September. 2010, Ekl called the first case “Chickens**t.” I didn’t ask him if he felt vindicated then, but today out in front of the courthouse, commenting on the second directed verdict for Bianchi, he said, “These charges never should have been brought.  It was not a good faith prosecution.

“A state’s attorney is going to make enemies.”

• “Sometimes judges don’t like you.
• “Sometimes lawyers don’t like you.
• “Sometimes police don’t like you.”

Ekl said that state’s attorneys all over Illinois were watching this case.

That a Special Prosecutor could be appointed to second guess a state’s attorney was “a frightening concept.”

He related a person’s observation of the two greatest powers that government has

• to got to war
• to indict

“These Special Prosecutors have abused their power.”

Questions were asked concerning

• whether a civil suit was in the offing
• whether Bianchi would ask taxpayers to pay his legal expenses
• whether Bianchi would run for re-election

The answer to the first question was Lou would look at all aspects.  If we do engage in additional litigation, we will go 110%.

The answer to the second question?

“Over the next week or so Lou and I will be sitting down and talking about legal bills.”

Concerning re-election, no real answer either.

Personal feelings of Bianchi and how did the second trial compare with the first?

“I was confident after the first trial and fearful, but less fearful (concerning the second),” Bianchi answered.

Would Bianchi have done anything differently?

“I would not share my sympathy for someone else who had been blasted in the press,” he said.

The Northwest Herald’s story is here.

The Daily Herald story is here.

The Chicago Tribune story is here.

The Chicago Sun-Times story is here.

The Crystal Lake Patch story is here.

The First Electric Newspaper story is here.

= = = = =
Bianchi had previously scheduled a fund raiser for August 18th.  Details below:

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)
) SS:
COUNTY OF McHENRY)

IN THE TWENTY-SECOND JUDICIAL CIRCUIT
McHENRY COUNTY, ILLINOIS

THE PEOPLE OF THE )
STATE OF ILLINOIS, )
)
Plaintiff, )
)
vs. )
)
LOUIS A. BIANCHI and ) No. 10 CF 933
JOYCE C. SYNEK, ) 10 CF 934
)
Defendants. )

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.

APPEARANCES:

MR. THOMAS K. McQUEEN and
MR. HENRY C. TONIGAN, III,
Special Prosecutors,
Appeared on behalf of the Plaintiff.

EKL WILLIAMS
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 )
) SS:
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.