McHenry County Blog

Special Prosecutor Henry Tonigan tried to get McHenry County Circuit Judge Gordon Graham to pull the plug on his assignment to prosecute McHenry County State’s Attorney Lou Bianchi.

Judge Graham pointed out that the McHenry County Board had appealed his decision to allow the County Board into the fee portion of the Special Prosecutor case and that meant he did not have jurisdiction over the case anymore.

Henry Tonigan. Photo credit: First Electric Newspaper.

Thomas McQueen. Photo credit: First Electric Newspaper

Yesterday, Tonigan’s associate Thomas McQueen, who admitted he did most of the work on the second indictment of Bianchi, has petitioned Winnebago County Circuit Court Judge Joseph McGraw to get out of trying the case.

Today, Tonigan followed McQueen’s example, pointing to a letter he considered to be threatening that had been sent by Bianchi attorney Terry Ekl.  The letter appears to mirror the one that McQueen received.

From reading the paperwork, the withdrawal logic is similar, except that Tonigan points to his father’s ill condition and need for his help.

What Henry Tonigan said June 29, 2011, about his father's condition.

He also includes the following undated statement, which I presume is from Tonigan’s first attempt to drop out of the case.  It is below:

This statement come from an attachment to Henry Tonigan's June 29, 2011, motion to withdraw from prosecuting Lou Bianchi. The exhibit is undated.

Have you ever talked to supervisors who have told you the excuses that malingerers use to explain why they took the day off?

Pity the one who says that his or her mother’s father has just died.

And, then uses the same excuse again.

On April 25th, McHenry County Special Prosecutor filed a motion saying he wanted to withdraw from the criminal prosecution of McHenry County State’s Attorney Lou Bianchi because

• his 86-year old father has an unnamed medical condition that requires his attention, that
• his sister can’t help has her own serious medical problems and has moved from his abode to California.

But now, the Daily Herald reports Tonigan has enough time to take on the investigation of whether Grayslake school district officials/teachers that used public resources to help elect school board members.  That sounds like a case for the Lake County State’s Attorney, not a retired judge who needs time to take care of his father.

The headline from the Daily Herald's article Tuesday that Henry Tonigan is taking on another job, while declining the finish the one assigned him in McHenry County by Judge Gordon Graham.

Asked about what McQueen was doing before Tonigan’s motion appeared, Bianchi attorney Terry Ekl explained,

“McGraw is the only possibility for McQueen to escape this case.

Terry Ekl explaining that he is about to file an April motion to replace Special Prosecutor Henry Tonigan and his assistant Thomas McQueen before Judge Gordon Graham.

“Graham, clearly, will not issue any orders.

“What McQueen really is asking is that his appearance on behalf of the special state’s attorney, Skip Tonigan, be stricken.

“As you know this is a very unusual situation.

“In my 35 years practicing criminal law I have never heard of a prosecutor wanting to ‘withdraw’ from a case.

“If a prosecutor does not want to prosecute a case he will dismiss the case.

“That is what should happen here.”

Ekl also observed,

“This is nothing but an excuse to try to get out of the mess that he and Tonigan created.

“There is (rarely an) ability of a prosecutor to withdraw on a case they have brought.

“McGraw may agree to strike the appearance of McQueen and then Tonigan can continue to prosecute the case. Remember that Tonigan is the special State’s attorney and McQueen is his assistant.

“Although this is a further mess I do not believe that McGraw will change the trial date.”

The case is up before McGraw in Rockford on Friday at 10:00.

It is not a secret that McHenry County State’s Attorney Lou Bianchi’s defense attorney Terry Ekl holds Special Prosecutors Henry Tonigan and Thomas McQueen in low esteem.

He has compared them to Abbott and Costello last Friday, saying that such a comparison was unfair to the two comedians.

At that time, Ekl had already sent and McQueen received a letter telling McQueen that a suit against him could be forthcoming “for damages and other relief against you and those associated with your investigation and prosecution of Louis Bianchi arising out of the following matters.”

As a result of the letter, McQueen petitioned Judge Gordon Graham to release him from his responsibilities as Special Prosecutor.

If you are interested, you can read about those “matters” below:

Special Prosecutor Thomas McQueen has filed a motion before Circuit Court Judge Gordon Graham, apparently Tuesday, to withdraw as the main man going after McHenry County State’s Attorney Lou Bianchi.

Previously, the Special Prosecutor first appointed by then-Associate Judge Gordon Graham, former Circuit Court Judge Henry Tonigan, asked to withdraw from the case to care for his ailing father.

Special Prosecutor Henry Tonigan (on the right) and his assistant Thomas McQueen (on the right) have both petitioned the man who appointed them, Judge Gordon Graham, to be relieved of their responsibilities. Photo by First Electric Newspaper.

Tonigan, however, has taken on internal investigative duties at Grayslake School District 46. Use of school resources in the last school board election has been documented by Tea Party members.

Graham refused to let Tonigan go on the grounds that the McHenry County Board had appealed his ruling to the 2nd Appellate Court, thus relieving him of decision-making power in the case.

McQueen points out that on June 20, 2011, (dated July 17, 2011) he received a letter from Bianchi defense attorney Terry Ekl threatening to sue him.

“Under the circumstances as they present themselves now, with the prosecution under threat of suit by the defendant, any further participation in this prosecution by the undersigned will give rise to questions about his judgment in tactical decisions and whether, in response to these threats against him personally and financially, has properly exercised his responsibility as a public prosecutor.”

Tonigan says that the threat will inhibit his “exercisi(ng) independent professional judgment” and “render(ing) candid advice.”

McQueen writes he has to withdraw in order “not to put prosecution in this case in any fashion whatsoever in an ethically improper perspective.”

Special Prosecutors Thomas McQueen and Henry Tonigan hold press conference. Robert Scigalski stands to their left. Photo by Pete Gonigam, First Electric Newspaper.

With a motion by Terry Ekl to dismiss him and his assistant Special Prosecutor Thomas McQueen from his task of knocking McHenry County State’s Attorney Lou Bianchi out of office pending, former Judge Henry Tonigan is pleading family obligations as his reason to withdraw from his lucrative assignment.

The motion Terry Ekl will argue Thursday.

In a motion filed Monday, April 25th, Tonigan says that his 86-year old father has an unnamed medical condition that requires his attention, that his sister can’t help has her own serious medical problems and has moved from his abode to California.

Tonigan proposes that assistant Thomas McQueen take over the role of Special Prosecutor.

The hearing is set for Thursday, April 28th at 10 AM, the same time that Ekl’s voluminous motion to dismiss both prosecuting attorneys is to be heard.

Tonigan and McQueen put on such a poor case against Bianchi and his assistant Joyce Synek that Rockford Judge Joseph McGraw dismissed the case on a motion for a directed verdict before the defense had put on any evidence.

When I posted Mike Tryon’s press release about the bill he and Jack Franks got passed in the House to rein in special prosecutors, I predicted it would lead to more outcry about Judge Gordon Graham’s handling of the payment of his appointee Henry Tonigan.

See “Tryon Increases Pressure on Judge Graham.”

The following front page from the Northwest Herald certainly helped do that:

It wasn’t passage of the bill. It was the press release.

Judge Gordon Graham

Judge Gordon Graham ruled against McHenry County’s attorney’s argument to cut the fees of Special Prosecutors Henry Tonigan and Thomas McQueen, but he’ll have another chance when McHenry County State’s Attorney Lou Bianchi’s attorney Terry Ekl asks for similar relief.

And, if the County Board votes to appeal Graham’s decision, the Appellate Court may order him to revise downward the fees that he allowed the men he appointed.

In the meantime, there are other actors in the political arena.

Two have weighed in with legislation to make sure hundreds of thousands of tax dollars are not out the door because a judge appoints someone to be a Special Prosecutor.

Below is the press release from former County Board Chairman Mike Tryon whose immediate impact will be to raise more public outcry about Graham’s decision.

State Rep. Mike Tryon Sponsors Bill to Decrease

Costs Associated with Trials for Elected Officials

Rep. Jack Franks Co-Sponsors Bill to Address Bianchi Trial Concerns

McHenry County’s two State Representatives are working together to make sure that a county board is never again left on the hook for hefty legal bills associated with an investigation and trial of a public official.

Mike Tryon

Jack Franks

House Bill 2558, which passed through the House on Friday, would correct many of the perceived financial issues that arose during the recent corruption trial of McHenry County State’s Attorney Lou Bianchi. Rep. Mike Tryon (R-Crystal Lake) is the bill’s chief sponsor and Rep. Jack Franks (D-Marengo) is the bill’s chief co-sponsor.

The bill was filed by Tryon as a result of $312,259 thus far in legal bills that the McHenry County Board is under a court order to pay in association with the Bianchi investigation and trial. The county board unsuccessfully appealed the amount of the bills, and was ordered to pay them in full.

“The passage of House Bill 2558 would prohibit unanticipated legal bills like this from ever happening again in McHenry or any other Illinois county,” said Tryon. “It would certainly minimize the cost to taxpayers by forcing counties to look at using less expensive avenues for gathering forensic evidence and for attorney fees.”

The bill would mandate that when a sitting public official is investigated and tried on charges, the courts would look to other public prosecutors to do the work so costs could remain manageable. The bill would also require that the scope of the investigation be well-defined and that county boards be given estimates on costs so they could plan for the expense. The bill would also allow county boards to receive itemized bills for the fees.

“The forensic costs were more than what was anticipated in this ongoing McHenry County case,” said Tryon.

“We need to put a process in place that minimizes the financial impact and allows county boards to prepare. County board members are the custodians of the taxpayers’ money, the current method by which the they must blindly pay these bills is unacceptable.”

McHenry County Courthouse

Friday, McHenry County Blog pointed out that the McHenry County Board’s Law and Justice Committee was scheduled to approve a resolution “respecting the length of duration of the Special Prosecutor”in the case against State’s Attorney Lou Bianchi for using his office to advance his political aspirations.

It did so at this morning’s meeting. The resolution is below.

It asks that “the orders appointing the Special Prosecutor be clarified to delineate the scope of the authority as to subject matter and duration.”

RESOLUTION
REQUESTING A CLARIFICATION OF THE
ORDERS APPOINTING THE SPECIAL PROSECUTOR

WHEREAS, in April of 2009, an action was brought (09 MR 142) on a citizens’ Petition requesting that the court appoint a Special Prosecutor to investigate claims of official misconduct of the current McHenry County State’s Attorney and others working in the McHenry County State’s Attorney’s Office; and

WHEREAS, the court did appoint Henry Tonigan as Special Prosecutor to investigate allegation of official misconduct alleged in the 2009 Petition; and

WHEREAS, as a result of Special Prosecutor Tonigan’s investigation, the Grand Jury indicted, and charges are being prosecuted against the McHenry County State’s Attorney and an employee of the McHenry County State’s Attorney’s Office; and

WHEREAS, it is the understanding of the County that the investigation remains open under the November 2009 order, apparently under an interpretation of the order without reference to the fact allegations in the Petition informing the subject matter and time frame of the September 2009 order appointing the Special Prosecutor; and

WHEREAS, the County Board is concerned that the apparent vagueness of the November 2009 order will result in an open-ended investigation of the McHenry County State’s Attorney’s Office unrelated to the allegations in the Petition and pending prosecution, as such an investigation would create financial hardships for the County and potentially expose it to civil liability.

NOW, THEREFORE BE IT RESOLVED, that while it is not the intent of the County Board to diminish the supervisory authority of the court or the statutory McHenry County State’s Attorney’s Office acting through the Special Prosecutor or to interfere with the court’s discretion, it does wish the court to acknowledge the County’s interest as an intervener extends to requesting that the orders appointing the Special Prosecutor be clarified to delineate the scope of the authority as to subject matter and duration; and

BE IT FURTHER RESOLVED that the County Board desires to present the Board’s resolution to the court in order to get this matter before the court.

DATED, this fifteenth day of February, A.D., 2011

= = = = =
Judge Gordon Graham is the “court” to which reference is made. The date is that of the next county board meeting.

You can read an eye witness account of the meeting by Gus Philpott, who writes Woodstock Advocate, here.

The latest court order from Judge Gordon Graham.

The bill?

$21,137.50 for Special Prosecutor Henry Tonigan

$24,701.94 for Assistant Special Prosecutor Thomas McQuenn.

$67,098.75 for Quest Consultants, Ltd.

Special Prosecutor Henry “Skip” Tonigan hasn’t gotten any of this bills to the County Board level since August, but he has apparently been a busy beaver.

The bills paid so far are

• $16,112.50 to Henry Tonigan
• $18,497.35 to Thomas McQueen
• $39,696.84 to Quest Consultants

The Chicago Tribune has a long (1,114 word) article today entitled,

“Bianchi probe
focuses on
dismissed case“

Click to enlarge.

It focuses on the use of the use discretionary power in the State’s Attorney’s Office with regard to a political ally.

The article notes that nothing has been made public of Judge Gordon Graham’s having expanding the charge to the Special Prosecutor beyond investigating Lou Bianchi’s use of his office for political purposes.

Sally Wiggins took part in parades in her high heels. She passed out roses.

Here is the statement of Sally Wiggins:

SALLY OEFFLING WIGGINS CONGRATULATES JUDGE GRAHAM

CRYSTAL LAKE, IL. NOVEMBER 3, 2010: Sally Oeffling Wiggins Independent Judicial Candidate for McHenry County Circuit Court congratulates Judge Graham on winning the Circuit Court.

When I started this journey in March with the petition drive one goal was to raise public awareness about “independence in our judiciary” for this critical branch in government that provides a balance of power between the executive branch and the legislative branches of government, and the second goal was to give McHenry Co. voters a choice.

I know from meeting an estimated 10,000 of you the last 6 months that you understand the importance of judicial independence and with the 29,000 votes I also know that you indeed want a choice when voting.

In past elections, judicial elections have had a high under vote count nearing 25%. (That is the total number of people that vote, yet skip the judicial section on the ballot, choosing not to vote at all).

In yesterday’s contested Circuit Court Judge Election the under vote was a mere 11%.

By comparison, the other judicial races yesterday with only one candidate had over 20% in under votes.

Translation:

when voters are given a choice to vote they do so 15% more. Both goals were achieved only with the hard work and support of the small team of family and friends whom accompanied me in this rewarding journey. It was truly a gift.

I want to thank the over 29,000 people that had voted for me. It is encouraging to know that more people voted for me yesterday than the total vote cast for judge in the primary election of February 2010.

Thank You McHenry County,

Best Regards,

Sally Oeffling Wiggins,
Your Independent Candidate for McHenry County Judge