McHenry County Blog

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.

A U.S. Marshal told me he had spent three years sitting in courtrooms and never seen a directed verdict.

I’ve seen one.

It was when my 1982 Skinner for Congress campaign manager sued because I didn’t pay what he thought was owed.

We had signed a contact.

My lawyer asked him on cross examination if he had handled press releases, as the contract said he would.

He admitted that my then-wife Robin had.

The campaign manager was asked if he kept the schedule, as the contract said he would.

No, he admitted, a volunteer had done that.

After the campaign manager finished putting on his evidence, my attorney asked Judge Michael Sullivan for a directed verdict and it was granted.

That was a civil case.

McHenry County State’s Attorney Lou Bianchi’s and his assistant Joyce Synek’s were criminal cases.

Special Prosecutors Henry Tonigan and Thomas McQueen did not file adequate indictments against Bianchi and his assistant Joyce Synek.

That’s what Winnebago County Judge Joseph McGraw said again and again.

“There are defects in the pleading of Count 1,” Judge Joesph McGraw ruled.

“I do not find there is sufficient evidence of an agreement between Defendant Bianchi and Defendant Synek. With regard to circumstantial evidence to inferentially (conclude there was an agreement), I do not find that…merely raising the suspicion of an agreement does not exclude every other possibility.”

With regard to Count 2, McGraw said, “I do believe there is a defect in (the) pleading that allege official misconduct was committed in his official capacity. I do believe that authority (requires?) for it to be property plead that (it) has to specifically plead in the official’s official capacity. Moreover, as to the theft of labor and services, the underlying offense or forbidden conduct…and it demonstrates to my satisfaction that anticipation labor is not the property of the employer. Diversion is not theft beyond a shadow of a doubt.

“(In the) alternative to structural defect, I cannot find that there is sufficient evidence that employees of the defendant were directed to performance of duties on company time.”

These comments were made with regard to Counts 1-21 concerning Joyce Synek’s perjury charges:

“(Considering) the perjury (evidence in the) most favorable (light) to the state, as I’m (required to do), there’s no evidence she was asked to do politically-related work on a county computer.”

With regard to Count 23, “(Is there evidence she) deleted any documents in the last three years?

“No.

“I listened intently to Mr. Jerger’s (the Quest forensic computer “expert”). It appear there are some documents that have (been deleted). I could not find that Ms. Synek deleted those documents. I am not convinced beyond a reasonable doubt as to when and how they were manipulated or overridden.”

Concerning Count 24 about changing practices for location on the computer, Judge McGraw answered, “No.”

He found it “confusing listening to Mr. Jerger when whatever was done was done…I cannot find that she changed any practices.”

He went on to say with regard to the obstruction of justice charge, there was a “defect in the charging document.”

Referring to Count 15, “I do not find all the elements have been plead. I’m not going to infer or supply missing terms to the charging documents.”

I written before than my 1980′s divorce was contentious and expensive.

After the legal bills got to $100,000, I stopped counting.

Having watched Special Prosecutor Henry Tonigan’s crusade against McHenry County State’s Attorney Lou Bianchi, I’m confident that defense counsel’s bill will be more than $100,000.

After all Tonigan has billed $312,000 and that’s only through November.

Add to that Joyce Synek’s lawyer’s bill.

And, as McHenry County Blog reported Quest International, the firm Tonigan hired as his investigator, has at least another $87,000 to bill McHenry County taxpayers.

Since Quest’s bills are included in the $312,000 mentioned above, Tonigan’s price totals $399,000, plus any bills he and assistant Thomas McQueen may request for services since the end of November.

The county taxpayers are easily on the hook for over $500,000 at this point, probably closer to $600,000, and that doesn’t count the second set of indictments Tonigan and McQueen have filed that involve “nephews” whose relationship both Bianchi and his Chief investigator Ron Salgado say are nonexistent or, at best, tenuous, that is, not what you or I would call a nephew.

Maybe after seeing the detail that Bianchi attorney Terry Ekl convinced Judge Joesph McGraw to produce this week, the County Board will decide not to pay it all. (For instance, couldn’t the McHenry County Sheriff served subpoenas more cheaply than Quest?)

The politically motivated trial of McHenry County State’s Attorney Lou Bianchi and his assistant Joyce Synek ended in an acquittal for each on all counts.

Judge Joseph McGraw, brought in from Winnebago County to try the case, issued the half-hour oral decision Wednesday afternoon after hearing two and a half days of evidence presented by Special Prosecutor Henry Tonigan and his assistant Thomas McQueen.

McGraw approved a motion for a verdict of not guilty before any evidence was offered by Bianchi defense attorney Terry Ekl.

Ekl offered a detailed motion for a directed verdict, contending that the indictment by the Special Prosecutor was severely flawed and the evidence presented inadequate.

After a 130 minute lunch break, McGraw found Bianchi not guilty of conspiracy, obstruction of justice and official misconduct related to charges that he used the State’s Attorney’s Office for political purposes.

His assistant was found not guilty of similar charges, as well as having perjured herself in Grand Jury testimony.

Bianchi did not get off without a lecture from the judge, however.

The judge noted that the Special Prosecutor was “looking for a bright line between political and non-political (work) in the office.

“I do agree with the standard of absolute separation of political duties and official duties,” McGraw said looking at Bianchi, who was sitting at the defense table in front of him.

“You have to be extremely cautious. You as State’s Attorney are vested with such authority and discretion.  (It is) paramount that the public has absolute confidence (in your office).  (You must be) above reproach.

Presumably referring to the use of office personnel to respond to a December 2007 campaign attack from Sheriff Keith Nygren-backed Dan Regna. as well as staff preparation of Bianchi for editorial interviews with the Northwest and Daily Heralds, McGraw said,

“I do not think the State’s Attorney should be hamstrung from being able to defend his office, even if it is during an election.”

The Rockford jurist did call for more scrutiny to prevent political activities in the office.

“How you do your duties must be above reproach. What you do must not contain a hint of impropriety. Strenuous efforts must be made by you to (avoid impropriety).

“I agree with Mr. Tonigan and Mr. McQueen that there should be a bright line between political official (duties). I cannot condone any (misuse of office resources).

“However,” McGraw concluded, “evidence does not demonstrate any crimes have been committed on all criminal counts,” as he dismissed the Special Prosecutor’s case.

During the morning, Nichole Owens, former Chief of the Criminal Division, testified that she helped in Bianchi’s 2008 campaign for re-election, but did her work at home.

Asked why, she worked for Bianchi, she agreed with Ekl on cross examination that she did so because she wanted to.

“I was appalled at some of the case dispositions that took place under the prior administration of Gary Pack.”

At this point Tonigan objected, but was overruled by the Judge.

Asked if she worked eight hours the days of Management Team meetings, usually, but not always held at lunch time, Owens responded, “I worked more than eight hours every day.”

Owens was also asked Synek’s role in the campaign.

“She would prepare baked goods for the fund raisers.”

= = = = =
Some background that might be of interest:

Republicans at War – A Re-Run

On April 1st, Associate Judge Thomas Meyer will hear Sheriff Keith Nygren’s primary opponent Zane Seipler’s motion that Nygren used his office for political purposes. Bianchi has written that he will not do such an investigation.

Here are some tea leaves from the last hearing of the request for a Special Prosecutor.

Judge Sharon Prather’s courtroom Friday was more packed than I have seen it since the 22nd Judicial Circuit was inaugurated.

People were crammed in chock-o-block, many wearing carnations in support of McHenry County State’s Attorney Lou Bianchi.

The hearing was short with attorneys Terry Ekl and Ernest DiBenedetto appearing for Bianchi and Henry Tonigan and Thomas McQueen for the Special Prosecutor.

Judge Prather entered an order from the Illinois Supreme Court assigning the case to Winnebago County (Rockford). The judge assigned to hear the criminal case against Bianchi is Joseph McGraw.

Initially at least, McGraw is expected to do the traveling, but in a case about a Lake County judge, the Kane County jurist assigned the case made folks travel to Kane County a lot of the time, rather than making the arduous trip to the courthouse in Waukegan.

So, where the case will be heard is yet to be decided.

2,913 pages of evidence and Grand Jury transcripts were tendered to the defense by the Special Prosecutor.

A motion for discovery was entered by the defense.

A status hearing will be held on October 22.

After the hearing, the attorneys disappeared behind closed doors in a conference room between the hallway and the courtroom.

Then, it was time for them to talk to reporters.

Earlier Bianchi had refused to comment, referring a reporter to his attorney.

First to be surrounded by reporters from the Chicago Sun-Times, Chicago Tribune, Daily and Northwest Heralds, the First Electric Newspaper and McHenry County Blog was Henry Tonigan.

He revealed that the grand jury has not been discharged.

When asked if anyone else would be indicted, the reply was “No comment.”

When Pete Gonigan of the First Electric Newspaper asked under what statute Bianchi had been charged, Tonigan referred him to the State Statutes.

The basis for Gonigan’s question can be found in his article entitled,

Ethics Act Doesn’t Cover State’s Attorney

He points out that the State Officials and Employees Ethics Act doesn’t apply to State’s Attorneys, because holders of that office are categorized as being part of the judiciary.

As I heard what he said, Tonigan refused to specify what specific law that he was alleging Bianchi has violated.

Tonigan left the corridor and Bianchi’s lead attorney Terry Ekl was up.

Then, the temperature rose.

“Tonigan doesn’t want the taxpayers to know the enormous amount of money that this lark is going to cost the taxpayers.”

[Tonigan has refused to allow his billings to McHenry County public, hiding behind the Open Meetings Act exemption concerning “open investigations.” See “McHenry County Refuses to Release Special Prosecutor's Bill.”]

Ekl pointed out that the DuPage Seven trial cost $3 million, plus $3 million in fees.

“It’s going to be in the hundreds of thousands of dollars.”

Ekl criticized “private prosecutors who are being paid by the hour.”

Asked about the role of politics in the case, Ekl’s reply was,

“There is clearly a political component to this case to investigate Lou.”

Asked if Judge Gordon Graham, who appointed Tonigan as Special Prosecutor sail together, Ekl replied, “That’s what I’ve been told.”

But he did not have specifics.

“McQueen’s doing all the work,” Eck said about grand jury deliberations. “Tonigan’s just sitting there.”

Stimulated by another question, Ekl asserted,

“There is no bright line in the sand between politics and government.”

He pointed to parade floats, which help increase respect for law enforcement, but which have “a political spin off…So be it.”

That’s when the characterization in the headline came up. Ekl called them “chickens**t charges.”

With reference to the list of political donors, Ekl asserted, “What was actually done in this case didn’t violate any laws, any.”

He talked about the line between political and governmental activities.

It had to do “whether an individual was fund raising and campaigning out of his office…

“The evidence in this case will clearly show there was no fund raising in the office.”

Then, in reply to another question, Ekl said,

“No office staff at any time was involved in fund raising on state time.”

Will the defense ask for a change of venue, that is, for the trail to be held in another county?

“My inclination is it will remain here,” Ekl said.

The subject returned to finances.

Ekl explained that “unless you engaged in deliberate intentional misconduct” that he expected a not guilty verdict.

In that case, McHenry County taxpayers would pick up the cost of both sides of the case [much as Grafton Township taxpayers are expected to have to pay for Ancel Glink's and John Nelson's legal fees and consultant costs, about $162,000.]

If found guilty, Bianchi would be responsible for his own legal fees.

Ekl criticized Tonigan for not returning phone offers to have Bianchi appear before the grand jury to tell his side of the story.

“I never received a single request to testify before the grand jury. (That’s) reprehensible when you’re talking about ruining a man’s life.”