McHenry County Blog

It’s been a month over two years since former Deputy Sheriff and 2010 GOP primary election opponent Zane Seipler filed his case asking for a Special Prosecutor to probe whether Sheriff Keith Nygren used government resources in his campaign for re-election.

Horwitz continues to press his opinion that all the delays are in order to allow enough time to pass since the infractions he presents to allow for a felony prosecution.

And, he points out,

“At no time has the County addressed Mr. Bianchi’s position that he will not investigate or prosecute the Sheriff as Mr. Nygren is the client of the State Attorney and doing so would put millions of tax payer dollars at risk in troubling economic times.”

Bianchi “refuses to investigate or prosecute for legal reasons,” Horwitz writes, “having nothing to do with the merits of the criminal conduct of Sheriff Nygren.”

Later Seipler’s attorney argues,

“Bianchi refuses to investigate, review or prosecute the felony theft and official misconduct allegations attributable to his client.

“Hence, he cannot zealously represent the People.

“In short, Mr. Nygren, merely due to his political position, gets a free pass to commit serial felonies.”

Attorney Blake Horwitz summaries the reasons that McHenry County State’s Attorney Lou Bianchi cannot do the job:

Louis Bianchi, according to the brief, will not investigate the claims lodged …[for] the following reasons:

1. “the McHenry County State’s Attorney would be caused to withdraw from the civil cases where it presently represents the Sheriff;
2. “the McHenry County State’s Attorney may be prohibited from representing the “People” in any criminal prosecution initiated by the Sheriff’s deputies;
3. “hiring outside counsel to defend the civil cases would amount to an enormous burden resulting in up to ‘millions of dollars’ in tax payer expense;
4. “hiring outside counsel costs the tax payers an estimated savings of $10,000.00 per week.”

These allegations are ignored in the County’s motion, the brief reads.

Horwitz repeats evidence put in the court record from former Assistant State’s Attorneys Tom Carroll and Don Leist and points out that Leist now works for the Sheriff.

Distinguishing the current proceedings from a case cited by the County, Horwitz writes,

“In the instant case, there was and will not be an investigation.

“Hence, the relationship between Mr. Bianchi and Mr. Nygren as attorney and client is so significant that nothing can go forward.”

You can read the entire petition here.

The suit that had been virtually promised by McHenry County State Lou Bianchi during the two trials brought by Special Prosecutors Henry Tonigan and Thomas McQueen has been filed in Federal Court.

It outlines fifteen counts, which I’ll wade through this afternoon, so keep checking back, and asks for a jury trial.

Joining Bianchi in the 47-page suit are his assistant Joyce Synek and investigators Ron Salgado and Mike McCleary.

Besides Tonigan, McQueen and Quest, the following individuals are named:

• Daniel Jerger
• Robert Scigalski
• James Reilly
• Patrick Hanretty
• Richard Stilling
• Kellerer & Buckley, Ltd., and
• Unknown Conspirators

The plaintiffs charge they were “the victims of politically and financially motivated criminal investigations orchestrated by Defendants.”

The motivation?

“To remove Bianchi from office”

The method?

“Fabricating false criminal charges and prosecuting…despite the lack of probable cause or credible evidence.”

More specifically, in a general sense,

• manufacturing and presenting false evidence
• concealing exculpatory evidence
• presenting perjured testimony to a grand jury
• engaging in gross investigative and prosecutorial misconduct

“The conspiracy crumbled when Bianchi resisted pressure to resign from office and instead proceeded to trial…” which resulted in a directed verdict, the introduction continues before pointing out that Bianchi and Synek still “suffered significant and severe permanent damages.”

Next comes an extensive outline of the facts of the case, essentially, a timeline of when what happened. (As I read through it, I think it might be easier to follow if I highlight all of the names.)

It is quite long, but it’s all going up so you can read it the same way the judge and jury will:

Facts Common to All Counts of the Complaint

Background of the Conspiracy to Remove Bianchi from Office

9. In November of 2004, Plaintiff Bianchi was elected State’s Attorney of McHenry County after having previously defeated Glenn Gable in the March 2004 Republican primary.

10. Upon taking office on December 2, 2004, Bianchi promptly began reforming the SAO by inter alia:

(a) Eliminating the abuse of plea bargaining with politically connected defense attorneys;

(b) Increasing the amount of hours that all SAO employees were required to work each day;

(c) Refusing to give special deals to political operatives, contributors, and friends of the previous administration; and

(d) Terminating the employment of SAO employees who were unqualified or unwilling to competently perform their assignments.

11. As a result of these reforms, Bianchi frustrated political operatives in McHenry County who had obtained more favorable accommodations with the previous administration and other McHenry County departments.

12. In March of 2007, Bianchi announced his intention to run for re-election in the November 2008 State’s Attorney’s election.

13. Bianchi was opposed in the February 2008 Republican primary by Daniel Regna, a former assistant state’s attorney (ASA) under the previous administration, whom Bianchi had refused to hire.

14. The 2008 Republican primary campaign between Bianchi and Regna was highly contentious, and sharply divided supporters of Bianchi’s reforms and the political operatives who supported Regna in an effort to return the SAO to its prior mode of operation.

15. Bianchi won the February 2008 primary against Regna, prevailed again in the November general election, and in December of 2008, began his second term as State’s Attorney of McHenry County.

16. After failing in their efforts to legally remove Bianchi from office during the 2008 election, Bianchi’s political opponents initiated a politically motivated conspiracy to override the election and force Bianchi from office. The objective of this conspiracy was to arrest, indict, and publicly smear Bianchi, thereby causing him to resign his office, irreparably tarnish his public reputation, and allow his political opponents to install a State’s Attorney who would do their bidding.

The Manipulation of Amy Dalby and

the Appointment of a Special Prosecutor by Bianchi’s Political Enemies

17. From June 2004 until she resigned in July of 2006, Amy Dalby was employed as a secretary in the SAO.

18. Prior to resigning, Dalby stole approximately 5000 documents from a SAO computer, including confidential and sensitive documents concerning pending investigations and prosecutions.

19. Dalby stole the documents from the SAO at the suggestion of Kristen Foley, an ASA whom Bianchi had demoted from her position as Chief of the Civil Division. In the summer of 2007, Foley began actively working on the political campaign of Bianchi’s 2008 primary opponent, Daniel Regna.

20. In October 2007, Dalby gave the stolen documents to Kristen Foley for use in Regna’s campaign. Foley then disclosed the stolen documents to the media.

21. In November of 2007, Bianchi learned of the theft and petitioned a court to appoint a special prosecutor, independent of the SAO, to investigate, and if necessary, prosecute the responsible individual.

22. In March of 2009, Dalby was arrested and charged with six felony offenses. On or about June 1, 2009, Ms. Dalby pled guilty to computer tampering.

23. In the meantime, on February 23, 2009, in the Circuit Court of McHenry County, Daniel Regna filed a politically motivated petition to appoint a special prosecutor to investigate Bianchi, alleging that Dalby performed political work while working in the SAO.

24. Likewise, on April 23, 2009, at the direction and/or with the assistance of Bianchi’s political enemies, Dalby herself filed a petition for appointment of a special prosecutor to investigate her allegation that she performed political work while working in the SAO from December of 2004 until July of 2006.

25. The three year statute of limitation on any allegations made in Amy Dalby’s petition expired no later than July 2009, three years after Dalby left the SAO. Nonetheless, on September 4, 2009, McHenry County Circuit Court Judge Gordon Graham granted Dalby’s petition to appoint a special prosecutor.

26. Judge Graham also granted McHenry County’s Petition to Intervene and allowed the State’s Attorney’s Appellate Prosecutor’s Office to represent the interests of McHenry County in the matter.

27. On September 18, 2009, Judge Graham appointed Defendant Tonigan as a special state’s attorney and appointed Defendant McQueen to “assist” Tonigan.

28. Judge Graham’s order limited Defendants Tonigan and McQueen’s authority to investigating and/or prosecuting Dalby’s allegation that she performed political work at the SAO from December 2004 until July 2006.

29. The court file in the case appointing Defendants Tonigan and McQueen was later sealed and McHenry County, despite having an appearance on file, was not served with notice of a motion to seal the file and was not heard on the matter.

30. Furthermore, Defendants Tonigan and McQueen convinced Judge Graham, in an ex parte fashion, and without any input from McHenry County or its attorney, to compensate each of them at a rate of $250 an hour. This agreement violated 55 ILCS 5/3-9008, which, in order to avoid abuses of the public fisc, prohibits special state’s attorneys from exceeding the compensation of the elected state’s attorney, in a given year.

31. In October of 2009, Defendants Tonigan and McQueen interviewed Dalby and learned, by that time, at the very latest, that the statute of limitations barred any prosecution of Bianchi, or anyone else, for the allegations made by Dalby, even if true.

October-November 2009: Tonigan and McQueen Illegally Expand Their Investigation

32. Despite having a legal obligation to do so, Defendants Tonigan and McQueen did not terminate their investigation in October of 2009. Instead, Defendants Tonigan and McQueen unilaterally began an illegal taxpayer funded investigation into Bianchi and the SAO that grossly exceeded their limited legal authority. Defendants Tonigan and McQueen’s illegal investigation included misrepresenting themselves as special state’s attorneys and interviewing individuals regarding matters that far exceeded the scope of their limited appointment.

33. In order to continue the illegal investigation of Bianchi, fabricate a timely charge, and continue billing McHenry County exorbitant fees, in November of 2009, Defendants Tonigan and McQueen sought to expand their investigative authority. In order to conceal their conduct and prevent a challenge to the unwarranted expansion, Defendants Tonigan and McQueen decided not to properly petition the court, as required by Illinois law.

34. Instead, on November 18, 2009, Defendant Tonigan wrote Judge Graham an ex parte letter which, in violation of the Rules of Professional Conduct, was not sent to the County or its attorney, who had an appearance on file in the case. Tonigan’s letter was written on the letterhead of his employer, Defendant Kelleher & Buckley.

35. In the letter, Defendant Tonigan claimed that he and Defendant McQueen had already interviewed a number of witnesses and based on those interviews asked Judge Graham to “expand the order defining the role of our investigation.”

36. In order to expand his authority and persuade Judge Graham that Bianchi should be investigated for crimes that were not time-barred, Defendant Tonigan’s letter contained the following blatantly false statements regarding Bianchi:

(a) Dalby stated that she trained her successor [Joyce Synek], to perform political work on County time;

(b) There is a likelihood Synek provided secretarial services for Bianchi’s political interests on County time at least until September or October of 2007;

(c) Witnesses provided information about possible illegal acts by Bianchi related to his misuse or theft of County funds; and

(d) A witness indicated that Bianchi utilized County vehicles for his personal and political use.

37. Based upon those false representations, on January 7, 2010, Judge Graham signed an order, provided by Defendant Tonigan, granting Defendants Tonigan and McQueen the authority to investigate and prosecute Bianchi and “any and all persons” relative to any misappropriation or theft from “2005 and thereafter.”

December 2009-May 2010 Investigation: The Special Prosecutors and Quest Investigators Collaborate to Fabricate Evidence

38. Around December of 2009, Defendants Tonigan and McQueen retained an investigative firm, Defendant Quest, to investigate Bianchi. A billing arrangement was determined and agreed to, on an ex parte basis, by Defendant Tonigan, Defendant Quest, and Judge Graham, without any participation by McHenry County, the entity that was ordered to pay Defendant Quest’s bills. It was determined that each of Defendant Quest’s employees would be billed at an exorbitant rate for police investigators of $135 an hour, with the exception of Defendant Jerger, whose time was to be billed at the unheard of rate of $250 an hour.

39. After being appointed as special investigators, Quest employees, including, but not limited to, Defendants Jerger, Scigalski, Reilly, Hanretty, and Stilling (hereinafter collectively referred to as “Quest Investigators”) participated, with Defendants Tonigan and McQueen, in a wide ranging politically and financially motivated investigation of Bianchi and the SAO.

40. Defendants Tonigan, McQueen, the Quest investigators, and other as yet unnamed co-conspirators, met and agreed, through explicit and/or implicit means, to manufacture and fabricate evidence for the purpose of removing Bianchi from office by charging and prosecuting Bianchi and other SAO employees for criminal offenses, despite the lack of probable cause or credible evidence.

41. In furtherance of that agreement, Defendants Tonigan and McQueen interviewed individuals for the purpose of obtaining rumor and hearsay information to support their predetermined decision to prosecute Bianchi and remove him from office.

42. Defendants Tonigan and McQueen also directed the Defendant Quest Investigators to conduct certain interviews for the purpose of manufacturing and fabricating evidence.

43. The Defendant Quest Investigators represented themselves to witnesses as McHenry County Special Investigators who had been engaged by Defendant Tonigan to conduct an investigation into the official misconduct in the SAO.

44. After conducting interviews, the Defendant Quest Investigators informed Defendants Tonigan and McQueen of information related during the interviews.

45. After consulting with Defendants Tonigan and McQueen, the Defendant Quest Investigators prepared reports regarding certain interviews. In furtherance of their conspiratorial agreement with Defendants Tonigan and McQueen and in an effort to manufacture and fabricate evidence against Bianchi and other SAO employees, the Defendant Quest Investigators knowingly included false and manufactured information in their reports of interviews, to wit:

a) Defendant Scigalski falsely reported that former ASA William Dennison stated that:

i) Bianchi held campaign meetings during working hours that were attended by SAO employees;

ii) Bianchi had an assistant, Jamie Rein, walking around the office selling tickets to his fundraiser; and

iii) Bianchi allowed SAO employees to leave the office early the day of his fundraiser because he wanted attorneys to arrive early.

b) Defendant Scigalski and/or Defendant Reilly falsely reported that former ASA Nichole Owens stated that:

i) Bianchi used SAO employees to attend lunch time “political campaign committee meetings”;

ii) Bianchi’s campaign committee members were responsible for political activities in the SAO; and

iii) Expos (community sponsored public information forums) were used to promote Bianchi and comp time (paid time off) should not have been given to ASAs for attendance.

c) Defendant Reilly falsely reported that former ASA Mary McClellan stated that:

i) Former ASA Michelle Courier ran the Bianchi campaign out of her office.

d) Defendant Scigalski and/or Defendant Stilling falsely reported that ASA Jamie Rein stated that:

i) The entire SAO was asked to attend a Bianchi fundraiser;

ii) She was told her lack of attendance at a fundraiser might affect her career;

iii) Attendance at expos by ASAs was mandatory and the expos were held to provide a political advantage to Bianchi; and

iv) She received comp time for attending a Bianchi’s fundraiser.

46. All of the former and current ASAs described in paragraph 45 (a-d) have confirmed that they did not make any of the statements attributed to them in Defendants’ false reports.

May-August 2010: The Special Prosecutors Engage in Gross Misconduct in Connection With the Special Grand Jury.

47. On April 9, 2010, Judge Graham convened a special grand jury and also appointed, at taxpayers expense, fifteen (15) Quest investigators as agents of the special grand jury, including Defendants Jerger, Scigalski, Reilly, Hanretty, and Stilling.

48. After the special grand jury was convened, Defendants Tonigan and McQueen continued to lead the politically motivated investigation by interviewing witnesses personally and directing the Quest investigators who to interview, what questions to ask, and what information to document.

49. The Defendant Quest Investigators served search warrants, subpoenas, and subpoenas duces tecum at the direction of Defendants Tonigan and McQueen. In violation of Illinois law, the special grand jury did not issue or authorize the issuance of these subpoenas, but rather they were unilaterally issued by Defendants Tonigan and McQueen, without the special grand jury’s knowledge or consent.

50. Pursuant to these illegal subpoenas, from May 21, 2010 until October 22, 2010, numerous witnesses produced documents to Defendants Tonigan and McQueen and appeared before the special grand jury to testify.

51. Defendants Tonigan and McQueen engaged in gross misconduct for the purpose of improperly influencing the special grand jury to indict Bianchi and Synek for crimes that were not supported by probable cause, to wit:

a) Defendant McQueen, under the supervision of Defendant Tonigan, improperly testified as a witness to the following unsworn and false statements of fact:

i) that County employees were given “comp time” for attending parades and evening public events which were political in nature;

ii) that Thomas Carroll, a former ASA, was directly told that he was expected to participate in political activities when he was hired as chief of the civil division;

iii) that political pressure was brought to bear on SAO employees during Bianchi’s tenure;

iv) that all of the documents that McQueen presented to the special grand jury, which came from the hard drive of a computer used by Joyce Synek, were political in nature; and

v) that Joan Hoffman, an administrative assistant in the SAO, provided McQueen political documents from her SAO computer.

52. Defendant Tonigan refused to interview Bianchi or allow Bianchi to testify before the special grand jury, despite Bianchi’s requests to do so.

53. Defendant Scigalski falsely testified before the special grand jury that former ASA Nichole Owens told him that:

a) Bianchi assumed and expected that ASAs would do political activities, including attending fundraisers, leaving work early to go to campaign meetings, and marching in parades, for which they received comp time;

b) One of Ronald Salgado’s chief jobs, as the chief investigator for the SAO, was to bring people together for political reasons;

c) Bianchi believed he could give comp time to employees for political work; and

d) Political campaigning was undertaken at Bianchi’s direction by SAO employees.

54. Defendant Scigalski also falsely testified before the special grand jury that SAO employees were given paid time by the County of McHenry for performing political work.

55. Defendant Daniel Jerger deliberately gave misleading testimony and intentionally withheld exculpatory evidence from the special grand jury for the purpose of conveying the false impression that Plaintiff Synek obstructed justice by deliberately deleting documents on a computer after receiving a grand jury subpoena.

56. At the time of that false testimony, Defendant Jerger knew there was no evidence that any document had been deleted from the computer after the issuance of the subpoena. Defendant Jerger also learned that the documents were not recoverable due to a computer virus rather than any wrongdoing by Bianchi or Synek. This information was also known to both Defendants Tonigan and McQueen prior to seeking indictments against Bianchi and Synek based on those accusations.

September 2010: Bianchi and Synek are Indicted and Arrested Without Probable Cause.

57. On or about September 10, 2010, based upon the Defendants’ misconduct as described above, the special grand jury returned an indictment against Bianchi, which was crafted by Defendants Tonigan and McQueen, for Conspiracy to commit official misconduct and obstruction of justice, nineteen (19) counts of Official Misconduct, and Unlawful Communication with a Witness (10 CF 933). None of these 21 counts were supported by probable cause or any competent evidence.

58. On September 10, 2010, based upon the Defendants’ misconduct as described above, the special grand jury returned an indictment against Synek for Conspiracy to commit official misconduct and obstruction of justice, four (4) counts of perjury, and obstruction of justice (10 CF 934). None of these counts were supported by probable cause or any competent evidence.

59. The indictment alleged that Bianchi and Syneck conspired to commit official misconduct and obstruction of justice. There was no evidence presented to the special grand jury that there was any agreement, either explicit or implicit, between Bianchi and Synek to commit either official misconduct or obstruction of justice.

60. The obstruction of justice charge against Synek falsely alleged that Synek, in agreement with Bianchi, deleted certain files after receiving a grand jury subpoena to produce those documents. Defendants knew the charge was false at the time of the indictment.

61. The indictment falsely alleged that Bianchi, in agreement with Synek, committed official misconduct by causing Synek to prepare and maintain certain documents on her County computer. The charges were insufficient on their face, as they failed to allege that Bianchi violated any law. Furthermore, no evidence was presented to the special grand jury that any of the documents that Synek allegedly prepared were actually typed by Synek, that they were typed on a County computer, or that they were typed during County work hours. Likewise, there was no evidence that Bianchi directed Synek to prepare any of the documents on a County computer or during County work hours. At the time the indictment was returned, the Defendant special prosecutors and Defendant Quest investigators knew that no such evidence existed.

62. Defendants Tonigan and McQueen knew that the indictments returned against Bianchi and Synek were not supported by probable cause. The indictments were obtained by Defendants Tonigan and McQueen, in concert with the Defendant Quest Investigators and other as yet unnamed co-conspirators, by first creating and then presenting false and manufactured evidence and statements of law to the special grand jury.

63. As a result of the indictments, a warrant was issued for the arrests of both Bianchi and Synek. On or about September 10, 2010, Bianchi and Synek were both placed under arrest by the McHenry County Sheriff and held in custody at the McHenry County Jail.

64. The indictments and arrests of Bianchi and Synek were widely covered by print, television, and electronic media throughout the Chicagoland area. Bianchi was widely described as the first State’s Attorney in the history of the State of Illinois to be indicted while in office. Based on the indictments and media coverage, Bianchi’s political enemies called on Bianchi to resign from office and questioned his ability to continue to serve as State’s Attorney while under indictment.

65. Despite the concerted efforts by the Defendants and other as yet unnamed co-conspirators, Bianchi refused to resign and continued with his duties as State’s Attorney.

October 2010: Based on the First Indictment Failing to Even State an Actual Offense Against Bianchi, the Special Prosecutors Use Perjured Testimony to Obtain a Superceding Indictment

66. The first indictment failed to allege Bianchi committed an actual underlying crime, which is required to charge official misconduct. Therefore, on October 22, 2010, Defendants Tonigan and McQueen sought a superceding indictment against Bianchi.

67 In order to obtain the superceding indictment, Defendants Tonigan and McQueen fabricated an underlying crime of “theft of labor, services, and use of property” by knowingly presenting the perjured testimony of Defendant Richard Stilling to the special grand jury. Defendant Stilling falsely testified that Peter Austin, the McHenry County Administrator, told him that only the County Administrator could authorize the use of County property for non-county business and that Peter Austin had not given anyone in the SAO such permission. In fact, Peter Austin never made any such statement to Defendant Stilling. Stilling never prepared a report of his interview of Peter Austin.

68. Furthermore, Defendants McQueen and Stilling falsely misrepresented to the special grand jury that the County of McHenry policy manual did not authorize Bianchi to give his SAO employees permission to use a County computer for non-work purposes. Defendant Stilling, as well as Defendants Tonigan and McQueen, knew the manual expressly gave Bianchi such authority. This perjured testimony was presented to the special grand jury by Defendants Tonigan and McQueen for the purpose of securing a corrupt indictment charging that Bianchi committed the crime of theft of County property.

69. Other than the above described testimony of Defendants Stilling and McQueen, Defendants Tonigan and McQueen presented no other evidence or testimony to the special grand jury in support of the superceding indictment.

70. Based on the above described misconduct, the special grand jury returned a superceding indictment against Bianchi and Synek alleging that Bianchi committed the offenses of official misconduct by committing the underlying offense of “Theft of labor, services, and use of property” of McHenry County (720 ILCS 5/16-3). Defendants Tonigan, McQueen, and the Quest Investigators knew that there was no probable cause or competent evidence to support the superceding indictment.

October 2010-March 2011: Defendants Withhold Critical Evidence and Plaintiffs Bianchi and Synek are Acquitted After a Motion for Directed Finding

71. After all of the judges in McHenry County recused themselves from Bianchi and Synek’s criminal cases, the Illinois Supreme Court appointed Judge Joseph McGraw, a circuit court judge in the Seventeenth Judicial Circuit, to preside over the cases.

72. In furtherance of their conspiracy to prosecute and convict Bianchi and Synek for crimes they did not commit, Defendants Tonigan, McQueen and the Quest investigators deliberately withheld exculpatory evidence, including notes and witness statements, during the prosecutions of Bianchi and Synek.

73. Not until they were twice ordered by Judge McGraw to produce all handwritten notes did Defendant Tonigan and Defendant McQueen finally tender Defendant Jerger’s handwritten notes containing critical witness statements from over ten separate interviews. This untimely disclosure, five days before trial, was intended to prevent Bianchi and Synek from discovering there was no evidence that any document was erased from a computer after a subpoena for those documents was issued and that a computer virus explained why certain documents could not be recovered from the computer, rather than any deliberate act by Synek or Bianchi. This evidence eviscerated the conspiracy and obstruction of justice charges against Bianchi and Synek.

74. By fabricating evidence during the investigation through manufactured interview reports and perjured grand jury testimony, and then concealing the exculpatory evidence which established the falsity of the charges after indictment, Defendants Tonigan, McQueen, and the Quest Investigators forced Bianchi and Synek to remain under indictment for more than six months.

75. The withheld information would have additionally revealed gross investigative and prosecutorial misconduct and perjured testimony before the grand jury, thereby exposing due process violations which would have led to the dismissal of Bianchi and Synek’s indictments prior to trial.

76. On March 23, 2011, after a two day bench trial, Judge Joseph McGraw granted Bianchi and Synek’s Motion for a Directed Finding and acquitted them of all charges. Judge McGraw found that the charges of conspiracy and official misconduct were all fatally defective as they failed to allege essential elements of the offenses and that Defendants McQueen and Tonigan failed to present any evidence to support any of the charges.

The Conspiracy to Force Bianchi From Office Continues

77. Shortly after obtaining the first indictment against Bianchi and Synek, Defendants Tonigan, McQueen, and Scigalski began a second illegal and unauthorized investigation of Bianchi, and two of his employees, Plaintiffs Ronald J. Salgado and Michael J. McCleary. This investigation included interviewing witnesses about Bianchi’s handling of criminal cases, which clearly exceeded their authority under the orders signed by Judge Graham appointing Defendants Tonigan and McQueen on September 18, 2009 and January 7, 2010.

78. On October 1, 2010, long after Defendants Tonigan, McQueen, and Scigalski had already begun their second unauthorized investigation, Defendant McQueen filed a verified petition to expand their investigation which contained knowingly false statements regarding Bianchi’s allegedly improper intervention in three criminal cases, to wit:

a) that Bianchi directed an ASA to reduce a plea offer to Ronald Salgado’s nephew (Jeremy Reid) from five to four years;

b) that Bianchi asked an ASA to secure a recognizance bond for one of his relatives (Michael Morzos), a felony defendant, and instructed the ASA to delay the case so his relative could benefit from a diversion program which was not yet operational; and

c) that Bianchi interceded in the case of a defendant (Tom Salvi), who was related to a financial supporter of Bianchi.

79. Defendant McQueen’s misrepresentations in the petition were intended to convince Judge Graham to expand Defendants Tonigan and McQueen’s authority to investigate and prosecute Bianchi and Salgado for crimes they did not commit and further the goal of the conspiracy to tarnish the reputation of Bianchi and drive him from office.

80. Based on Defendant McQueen’s perjured petition, on October 1, 2010, Judge Gordon Graham signed an order appointing Defendants McQueen and Tonigan as special state’s attorneys to investigate and prosecute individuals for using their official position in the SAO to give benefits in criminal prosecutions to friends, relatives, and supporters.

81. In regards to the second investigation, Defendants Tonigan, McQueen and the Quest investigators, and other as yet unnamed co-conspirators agreed, through explicit and/or implicit means, to fabricate evidence for the purpose of charging and prosecuting Bianchi and Salgado with criminal offenses, despite the lack of probable cause or competent evidence to support such charges.

82. Prior to and after October 1, 2010, Defendants Tonigan, McQueen, Scigalski and Hanretty, interviewed several witnesses.

83. Prior to all witness interviews, Defendants Scigalski and Hanretty identified themselves as McHenry County Special Investigators who had been engaged by Special State’s Attorney Henry Tonigan to conduct an investigation into official misconduct in the SAO.

84. The interviews conducted by Defendants Scigalski and Hanretty occurred at the direction of Defendants Tonigan and/or McQueen. After they were completed, the Defendant Quest Investigators informed Defendants Tonigan and/or McQueen of the substance of several interviews.

85. Several witnesses interviewed by Defendants McQueen, Scigalski, and Hanretty provided information that negated the credibility of any accusations against Bianchi and Salgado. Defendants McQueen, Tonigan, and the Quest investigators deliberately ignored and failed to document that exculpatory information.

86. After conducting witness interviews, Defendants Hanretty and Scigalski, in agreement with Defendants Tonigan and McQueen, manufactured and fabricated false inculpatory evidence against Bianchi and Salgado in their reports while failing to properly document exculpatory evidence, to wit:

(a) Defendant Scigalski falsely reported that ASA Demetri Tsilimigras stated that he was directed by Bianchi to present the victim in the Thomas Salvi case with various alternatives to prosecution, one of which was for the victim to accept an apology and an agreement that Thomas Salvi would undergo counseling;

(b) Defendant Scigalski deliberately failed to record ASA Tsilimigras’ actual statement that he was the one who advised Bianchi of the options that could be given to the victim and Bianchi told him that if the victim wanted to proceed to trial, that was to be the end of the discussion;

(c) Defendant Scigalski falsely reported that former ASA Kirk Chrzanowski told him that Bianchi told him that the sentence for Jeremy Reid was to be four years, rather than five years, and that following Reid’s sentencing, the Reid family was greeted at the rear of the courtroom with Bianchi celebrating the sentence;

(d) Defendant Scigalski deliberately failed to report Chrzanowski’s actual statement that Bianchi did not direct him to reduce Jeremy Reid’s sentence to four years and that Bianchi did not have any face to face contact with Reid’s family;

(e) With the knowledge of Defendants Tonigan, McQueen, and Scigalski, Defendant Hanretty intentionally failed to report the statement of Sue Ann Serdar, the president of the Pro-Life Victory PAC, that contributions to Bianchi’s campaign were not in exchange for, or in anyway related to, Bianchi dismissing any charges against Thomas Salvi;

(f) With the knowledge of Defendant McQueen, Defendant Scigalski deliberately failed to prepare an investigative report to document the statement of Philip Weyna, the chairman of the Pro-Life Victory PAC, denying that any contribution was given to Bianchi in exchange for dismissing a case; and

(g) After Defendants McQueen and Scigalski interviewed Philip Hiscock, the former Chief of the SAO’s Criminal Division and ASA Kirk Chrzanowksi’s supervisor during the pendency of the Jeremy Reid case, the Defendants deliberately failed to prepare an investigative report to document Hiscock’s statement that it was he (Hiscock) and not Bianchi who made the decision to offer Jeremy Reid a four year sentence on a plea negotiation.

87. Defendants knew that as a result of the fabricated inculpatory evidence and exculpatory evidence described in paragraph 86(a-g) above, that no probable cause or competent evidence supported any accusation against Bianchi and Salgado alleging interference with any criminal cases.

December 2010 -February 2011: Defendants Again Engage in Gross Misconduct in Connection With the Special Grand Jury.

88. In relation to the second investigation of Bianchi, the Quest Investigators served subpoenas and subpoenas duces tecum at the direction of Defendants Tonigan and McQueen. These special grand jury subpoenas, which were issued by Defendant Tonigan and/or Defendant McQueen, were not in fact authorized or issued by the special grand jury, in violation of Illinois law.

89. As a result of the illegal subpoenas that were issued by Defendants Tonigan and McQueen and served by the Quest investigators, between December 3, 2010 and February 24, 2011, witnesses appeared and testified before the special grand jury.

90. When appearing before the special grand jury, Defendants deliberately engaged in misconduct for the purpose of improperly influencing the special grand jury to indict Bianchi and Salgado for crimes that were not supported by probable cause or competent evidence, to wit:

(a) Defendant McQueen, under the supervision of Defendant Tonigan, falsely testified as a witness that Bianchi offered benefits to a few defendants that were not offered to everyone, in contravention of the way the system was supposed to work;

(b) Defendant McQueen, under the supervision of Defendant Tonigan, knowingly presented the deliberately misleading testimony of Defendant Scigalski to the special grand jury concerning the baseless allegation that Bianchi dismissed the Salvi case in return for a campaign contribution from the Pro-Life Victory PAC, which Defendants McQueen and Scigalski knew to be false;

(c) Defendant Scigalski testified falsely before the special grand jury that he had been told by Defendant McQueen that Gwen Salvi, Thomas Salvi’s wife, testified that she had contact with Bianchi through the Pro-Life Victory PAC;

 (d) Defendants McQueen and Scigalski, under the supervision of Defendant Tonigan, knowingly presented false testimony to the special grand jury that Bianchi directed an ASA to reduce the sentence of Salgado’s “nephew,” Jeremy Reid, from five years to four years;

 (e) Defendants failed to advise the special grand jury that Jeremy Reid was not Ronald Salgado’s nephew or otherwise related to Salgado;

 (f) Defendants failed to advise the special grand jury that Michael Morzos was not related to Bianchi; and

 (g) Defendants failed to advise the special grand jury that Bianchi was not involved in any decisions related to the disposition of Morzos’ case.

 February 2011: Bianchi and Salgado are Indicted and Arrested Without Probable Cause

91. On February 24, 2011, based upon the Defendants’ misconduct described above, the special grand jury returned an indictment against Bianchi for three counts of official misconduct (11 CF 169) based on Bianchi’s alleged intervention in the three criminal cases described above.

92. On February 24, 2011, the special grand jury also returned an indictment against Salgado for official misconduct based on the false accusation that Salgado told an ASA that his nephew, Jeremy Reid, should be given a four, instead of five, year sentence.

93. None of the charges were supported by probable cause or any competent evidence and in fact were directly contrary to the information known to Defendants McQueen, Tonigan, Scigalski and Hanretty.

94. As a result of the indictments, a warrant was issued for the arrest of both Bianchi and Salgado. On or about February 28, 2011, Bianchi and Salgado were both placed under arrest by the McHenry County Sheriff and held in custody at the McHenry County Jail.

95. Salgado’s bond was set at $50,000, requiring Salgado to post $5000 prior to being released from the McHenry County Jail.

February 2011: The Indictment and Arrest of McCleary Without Probable Cause.

 96. As an investigator for the SAO, McCleary was required to be on call 24 hours a day, seven days a week, and his duties included locating and serving witnesses with subpoenas. As such, McCleary was assigned a McHenry County vehicle.

97. Defendants Tonigan, McQueen and the Quest Investigators began an investigation into McCleary’s personal use of the County vehicle.

98. In relation to their investigation of McCleary, Defendants McQueen and Tonigan deliberately presented misleading evidence to the special grand jurors to create the false impression that McCleary was not authorized to use a County vehicle for personal use when McQueen knew that based on his position and duties, McCleary was in fact authorized to use his County vehicle for personal use.

99. On February 24, 2011, Defendant McQueen, under the supervision of Defendant Tonigan, improperly testified as a witness to the special grand jury by falsely stating that McCleary had asserted his Fifth Amendment rights and refused to answer whether he reimbursed the County for gas mileage or expenses. At the time, Defendant McQueen was fully aware that McCleary was never asked a single question relating to reimbursement to the County for gas mileage or expenses.

100. Defendant McQueen further falsely told the special grand jurors that he had issued a subpoena for any documents which would show that McCleary did reimburse the County for gas mileage or expenses and that no such documents were produced. In fact, no subpoena was issued which called for any such documents.

101. On February 24, 2011, based upon the misconduct described above, the special grand jury returned an indictment against McCleary for official misconduct. The indictment falsely alleged that McCleary committed a theft of the County vehicle assigned to him.

102. As a result of the indictment, a warrant was issued for the arrest of McCleary. On or about February 28, 2011, McCleary was placed under arrest by the McHenry County Sheriff and held in custody at the McHenry County Jail.

Tonigan and McQueen’s Defamatory Statements Further Tarnish the Reputation of Bianchi, Salgado, and McCleary

103. On February 28, 2011, the Defendant law firm of Kelleher & Buckley, acting through its agent Defendant Tonigan, and Defendant McQueen, issued a press release to the media. In the press release, Defendants repeated the inflammatory allegations contained in the indictments against Bianchi, Salgado, and McCleary, which, as described above, they knew to be false and not supported by probable cause or any competent evidence.

104. On February 28, 2011, Defendants Tonigan, McQueen, and Scigalski also held a press conference. At that time, McQueen, under the supervision and/or direction of Tonigan, again repeated the inflammatory allegations contained in the indictments against Bianchi, Salgado, and McCleary, which, as described above, he knew to be false and not supported by probable cause or any competent evidence. During the press conference, Defendant McQueen also made additional false and inflammatory statements regarding Bianchi, Salgado, and McCleary, to wit:

(a) Defendant McQueen falsely stated that after the return of the first indictment Scigalski received calls from a number of lawyers regarding cases handled by Bianchi and that those cases suggested that the equal protection rights of all defendants were not being upheld because of favoritism;

(b) Defendant McQueen falsely stated that in a case where the defendant was Salgado’s nephew, Salgado called the ASA handling the case and told the ASA that the negotiated plea of five years would be reduced to four years;

(c) Defendant McQueen falsely stated that after being called into Bianchi’s office, the ASA was told that the sentence for Salgado’s nephew would not be a five year period of incarceration but rather it would be four years; and

(e) Defendant McQueen falsely stated that Bianchi instructed an ASA to give his nephew a recognizance bond on a criminal matter.

105. Defendant McQueen and Tongian’s statements in the press release and press conference were defamatory, violated the Illinois Rules of Professional Conduct, and were made in furtherance of the conspiracy to convict Bianchi, Salgado and McCleary, force Bianchi to resign from office, and tarnish the public’s opinion of Bianchi.

June-August 2011:Salgado and McCleary’s Cases Are Dismissed by the Court and Bianchi is Acquitted After a Motion for Directed Finding

106. In furtherance of the conspiracy to prosecute and convict Bianchi, Salgado, and McCleary for crimes they did not commit, Defendants Tonigan, McQueen, Scigalski, and Hanretty deliberately and without lawful justification withheld exculpatory evidence, including notes of critical witness interviews and witness statements, during the prosecutions of Bianchi, Salgado, and McCleary.

107. Only after Bianchi filed a Motion to Compel and then a Motion for Sanctions against Defendants Tonigan and McQueen, did the special prosecutors produce the notes prepared by Defendant Hanretty of the interview he conducted of Sue Ann Serdar. However, Defendant Hanretty intentionally excluded from his notes Sue Ann Serdar’s exculpatory statement, in response to a direct question, that Pro-Life Victory did not contribute to Bianchi in exchange for Bianchi dismissing the case against Thomas Salvi.

108. On June 24, 2011, Defendant Scigalski deliberately gave perjured testimony at an evidentiary hearing on a Motion for Sanctions regarding who he spoke to during the investigation and what those individuals told him. This was done in an effort to conceal the identify of the other participants in the conspiracy to charge and prosecute Bianchi, Salgado, and McCleary for crimes they did not commit.

109. By fabricating evidence during the investigation through manufactured interview reports and perjured grand jury testimony and then concealing their wrongdoing after indictment, Defendants Tonigan, McQueen, and the Quest Investigators forced Bianchi to remain under indictment for more than five months.

110. The withheld information revealed gross investigative and prosecutorial misconduct, and perjured testimony before the special grand jury, which if timely disclosed, would have led to the dismissal of Bianchi’s indictment well in advance of trial.

111. On June 3, 2011, Judge McGraw dismissed the charge of official misconduct against Ronald Salgado based on the failure of the charge to state an offense against Salgado.

112. On June 29, 2011, Judge McGraw dismissed the charge of official misconduct against Michael McCleary based on the failure of the charge to state an offense against McCleary.

113. Bianchi’s second bench trial began on August 1, 2011. At trial, Defendant McQueen was assisted by Leone Flosi, an employee of Quest. McQueen falsely represented to Judge McGraw that Flosi was an attorney who was licensed to practice law in the State of Illinois.

114. On August 1 , 2011, immediately prior to the commencement of trial and without any prior notification to Bianchi, Defendant McQueen dismissed the charge against Bianchi which related to the prosecution of Michael Morzos. On August 2, 2011, after a bench trial, Judge McGraw granted Bianchi’s Motion for Directed Finding and acquitted Bianchi of the two remaining charges. Judge McGraw ruled that Defendant McQueen presented no evidence to suggest that Bianchi improperly handled any criminal prosecution or that he committed an offense of official misconduct.

The Conspiracy Between The Special Prosecutors, Quest Investigators, and Other Unnamed Individuals Was Driven By Political and Financial Motivations

115. The improper investigation and prosecution of Bianchi and his employees was initiated by Bianchi’s political enemies, including Daniel Regna, who lost the primary election to Bianchi in 2008.

116. Defendants Tonigan and McQueen’s improper investigation and prosecution of Bianchi, Synek, Salgado, and McCleary took place over a period of 23 months despite the fact that there was never any evidence indicating that Bianchi, Synek, Salagdo, or McCleary committed any crime. Defendants Tonigan and McQueen continued the case for this extended period to allow them to recoup the benefits of a fraudulent billing scheme, which enabled them to bill McHenry County taxpayers outrageous sums of money with no oversight or accountability.

117. Once the Defendant Quest investigators were hired by Defendant Tonigan and appointed as special investigators, they too engaged in fraudulent and excessive billing by overstating the amount of time that was spent on work, performing work that was unnecessary, and persisting in an investigation that was baseless in order to allow the scheme to continue unabated.

118. Defendants Tonigan, McQueen, and the Quest investigators deliberately concealed the results of their investigation which revealed no criminal wrongdoing and instead manufactured evidence so that they could continue to bill McHenry County taxpayers exorbitant sums for unnecessary services.

119. From February 2010 until March 2011, court orders were obtained which required McHenry County to pay Defendants Kelleher & Buckley, McQueen, and Quest specified amounts for their investigation and prosecution of Plaintiffs which were well in excess of what is permissible under Illinois law.

120. In the 14 month period from September 2009 until November 2010, McHenry County was forced to pay Kelleher & Buckley $81,027, Defendant McQueen $103,563, and Defendant Quest $127,668, and is anticipating additional bills from Defendants covering the nine (9) month time period of December 2010 until August 2011, which included the second investigation of Bianchi and both trials which were conducted in March of 2011 and August 2011.

Suit Counts

1. Fourth Amendment Violation–False Arrest (Conspiracy), Bianchi and Synek’s first arrest
2. Fourth Amendment Violation–False Arrest (Conspiracy), Second Arrest of Bianchi and Salgado’s arrest
3. Fourth Amendment Violation–False Arrest (Conspiracy), McCleary’s Arrest
4. Fourteenth Amendment–Due Process Violations (Conspiracy), First Prosecution of Bianchi and Synek
5. Fourteenth Amendment–Due Process Violations (Conspiracy), Second Prosecution of Bianchi
6. First Amendment–Retaliatory Prosecution (Conspiracy), First Prosecution of Bianchi and Synek
7. First Amendment–Retaliatory Prosecution (Conspiracy), Second Prosecution of Bianchi, Salgado, and McCleary
8. State Law Claim–Malicious Prosecution and Conspiracy, First Prosecution of Bianchi and Synek
9. State Law Claim–Malicious Prosecution and Conspiracy, Second Prosecution of Bianchi and Salgado
10. State Law Claim–Malicious Prosecution and Conspiracy, McCleary’s Prosecution
11. State Law Claim, Intentional Infliction of Emotional Distress and Conspiracy (Louis Bianchi)
12. State Law Claim, Intentional Infliction of Emotional Distress and Conspiracy (Joyce Synek)
13. State Law Claim. Intentional Infliction of Emotional Distress and Conspiracy (Ronald Salgado)
14. State Law Claim, Intentional Infliction of Emotional Distress and Conspiracy, (Michael McCleary)
15. State Law Claim, Defamation and Conspiracy, (Louis Bianchi, Ronald Salgado, and Michael McCleary)

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.

With Tom Carroll, the Chief of the McHenry County State’s Attorney’s Civil Division having resigned, that position needs to be replaced.

Assistant State’s Attorney Christiana Webb has been put in charge, at least for the time being, State’s Attorney Lou Bianchi has revealed.

Since he testified against his boss McHenry County State’s Attorney Lou Bianchi, things have probably been pretty tense in the office.

Today, according to the Northwest Herald, Carroll resigned from the State’s Attorney’s Office.

No reason way.

No replacement named yet.

Carroll used to the be the Chief Deputy State’s Attorney, but was demoted to Chief of the Civil Division.

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.

I’m not going to go into details, but one of the exhibits presented by McHenry County State’s Attorney Lou Bianchi’s defense attorney, Terry Ekl, makes it clear to me that Assistant State’s Attorney Tom Carroll will never be State’s Attorney.

Carroll was the main witness for the prosecution Monday.

Ekl asked if Carroll’s motivation was not vindictiveness (he didn’t use that word) for his demotion from First Assistant to Chief of the Civil Division.

While Carroll admitted that he was quite disappointed with the demotion, he did not concur with Ekl’s assertion that his cooperation with the Special Prosecutor was in the hope that he would end up becoming State’s Attorney.

Ekl countered with what Carroll had told his friend Jerry Majewski to that effect.  Majewski has not testified yet.

Special Prosecutor Henry Tonigan first laid out details of how Carroll has worked on office time

• answering election questionnaires from area newspapers and electronic media
• an introduction for County Board Chairman Ken Koehler to use at Biacnchi’s 2007 re-election kick-off
• helping prepare a letter requesting people to get petition signatures
• a rebuttal to (Sheriff Keith Nygren supported) Dan Regna’s call for politics and policy to be separated in the State’s Attorney’s Office
• reviewing a letter to Republicans rebutting Regna’s demand
• working on a guest editorial for the Daily Herald
• questions that the Northwest Herald might ask at its joint interview of Bianchi and Regna
• helping prepare a statement to release when Amy Dalby was expected to enter a plea agreement

The questioning by Special Prosecutor Henry Tonigan, whom I heard not a word from before Carroll’s questioning after lunch, was torturous.

How torturous?

The defense attorney for Bianchi secretary Joyce Synek was heard to say this in the hall:

“One more direct like that and I’m going to plead guilty.”

When Ekl started his cross examination the difference in style, tone and volume was notable.

“Did anyone have a gun to your head when you prepared these questionnaires?”
Ekl asked. “You did it on your own volition, didn’t you?”

“I did it on my own volition,” Carroll answered.

“Are you familiar with your Fifth Amendment rights?” was Ekl’s next question.

“Are you not concerned with not being charged with a crime because you did not believe you engaged in any illegal act?”

Carroll admitted trouble dealing with the double negative, so Ekl rephrased the question: “You don’t think you committed a crime, do you?”

“No,” Carroll replied.

Ekl went through all the meetings and phone conversations with the forces of the Special Prosecutor, then said, “You refused to meet with me to discuss this case.”

“Yeah, you made me mad.”

“I guarantee you’ll be mad at me when I finish (my questioning),” Ekl replied.

“You consider yourself to be an honest and ethical person?” Ekl asked, pointing out that he was McHenry County’s Ethics Officer.

Carroll pointed out that under the new ordinance he wasn’t sure he still held that post.

Next was a series of questions of whether Carroll had turned over the names of any assistant state’s attorneys to the Attorney Registration and Disciplinary Board, law enforcement offices to which Carroll agreed that he had not. Ekl pointed out that Carroll had directed his secretary to type political documents.

Bianchi’s attorney pursued a line of questioning regarding the flexible work hours that assistant state’s attorneys work.

“You never felt you cheated the county out of a day?” to which Carroll generally agreed.

“Up until your demotion you were universally singing the praises of Mr. Bianchi?”

“Yes.”

You wrote, “I have met very few people as honest and hard-working as Lou Bianchi, true?”

“Yes.”

Then, Ekl went into a long line of questioning about Carroll’s use of his office computer for personal purposes.

At one point Ekl observed that an overlap existed between matters that are personal and official in nature in the office.

Specifically, he pointed to the attack by Democratic Party opponent Tom Cynor.

Ekl suggested that “part of the function of the office is to respond to unfair criticism” to which Carroll agreed it was appropriate.

A call from Regna about sign stealing prior to the primary was brought up.

“I didn’t even know Danny knew had my (cell phone) number.”

Ekl characterized the conversation as Regna’s threatening a sign war.

It seems that Regna’s Local 150 of the Operating Engineers supporters were angry with Lou, the 100 or so union guys out putting signs up throughout the county.

“Part of the State’s Attorney’s job is to engage in politics,” Ekl observed to which Carroll agree.

Tonigan had made a big deal about Management Team meetings.

Ekl asked if the majority “with possibly two exceptions” had been held at lunch time.

“The majority of them, yes,” Carroll agreed.

“Lou would provide lunch,” Ekl added.

“You certainly didn’t think any of you cheated the county out of a full day’s work?” Ekl asked to which Carroll indicated that was a valid statement.

With regard to the prepping of Bianchi for the Northwest Herald Editorial Board engagement with Regna, Ekl characterized it as finding “the best way to tell people of the great achievements your staff had made on behalf of the people.”

There was talk about a memo to staff members stating what was acceptable and what wasn’t: “No campaigning in the office.”

Carroll indicated he worked on it.

The subpoena for “political documents” from the Grand Jury was discussed.

“Vague at best,” Ekl characterized it.

“I do think there’s a gray area,” Carroll agreed.

Carroll said in his discussion of the items to be turned over in reply to the subpoena that Bianchi “indicated that it would be a passive admission that they were political.”

Ekl talked of the Expo documents. “He didn’t think they were political…, but told you to do what you have to do.”

“There was not much of a disagreement, (right)? He wasn’t threatening you or anything like that?

“No, he wasn’t threatening me,” Carroll replied.

There was discussion of a memo telling employees they could attend the annual August fundraiser for $15 and an assistant went around assuring assistants that they didn’t have to attend.

Elk pointed out that Carroll had used office resources to wind up his private practice, help his family, accounting matters with CPA Mary Miller, an appraisal, a eulogy for his mother, online purchases and payments, travel planning, internet usage “for personal enjoyment,” etc.

With regard to whether Circuit Court judicial candidate Gordon Graham sent him a fund raising letter, Carroll said, “I’ve seen this, but I don’t believe I got one at work.”

On re-direct, Tonigan elicited that managers’ meetings were held more often as the election approached.

Last Thursday Special State’s Attorney Henry Tonigan filed a second indictment against McHenry County State’s Attorney Lou Bianchi.

Tonigan held a press conference about his grand jury’s four-day ago indictments today, but didn’t let me know it was to be held. (I assume he didn’t want me to ask questions about how much he was earning an hour, which he has thus far refused to reveal, along with submitting any itemized bills.)

Besides Bianchi, he also indicted two of his investigators, Ron Salgado and Michael McCleary. Salgado served as Bianchi’s campaign manager and the campaign manager of Tom Sanders when he ran against appointed Sheriff Keith Nygren in the late 1990′s.

Tonigan’s indictments question the discretion of Bianchi, charging him with having committed criminal acts in its exercise.

Here are the four counts:

Count 1 – Official Misconduct, a Class 3 Felony

Bianchi is accused of violating “Section 33-3(b) of Act 5 of Chapter 720″ by “knowingly perform(ing) acts which he knew was forbidden by law to perform in connection with the Class X felony drug prosecution…of John Doe #1…known by Bianchi to be the nephew of Ronald Salgado, Chief Investigator of the State’s Attorney’s Office…Bianchi directed an Assistant State’s Attorney to reduce (the)…negotiated sentence from five to four years which he knew to violate:

• Equal Protection rights of similarly situated defendants, Illinois Constitution 1970, Article 1, Par. 2
• 

  Page 3 (Count 3) of the February 24, 2011, indictment. Click to enlarge.

  Ethical requirements of candor to a tribunal, 2010 Illinois Rules of Professional Conduct, Section 3.3(a)(1)

• Duty of a prosecutor to seek justice, 2010 Illinois Rules of Professional Conduct, Section 3.8
• Ethical requirement that lawyers not engage in professional misconduct prejudicial to the administration of justice, 2010 Illinois Rules of Professional Conduct, Section 8.4 (a) through (c).

Count 2 indicts Ron Salgado for Class 3 Felony for communicating to as Assistant State’s Attorney as a “non-lawyer” that his “nephew(‘s)” sentence should be reduced from five to four years.

Count 3 – Official Misconduct, Class 3 Felony

Bianchi is accused of “direct(ing) an Assistant State’s Attorney to meet with the victim in People v. John Doe #2 and offer her an apology from John Doe #2 in return for her dismissal of the pending criminal complaint knowing that John Doe #2, his family members including his attorney had all contributed to Bianchi’s political campaign which direction he knew to violate (the same references cited in Count 1.)”

Count 4 – Official Misconduct, Class 3 Felony

Bianchi is accused of “agree(ing) to recognizance bond in a felony theft case for…John Doe #3 who Bianchi said was his ‘nephew’ and that the Assistant State’s Attorney should continue the case until a first offender program was in place in McHenry County so John Doe #3 could have the benefit of that program.”

Violations?

Same as in Counts 1 and 5.

Witnesses who appeared before the grand jury are listed:

• Thomas J. Carroll
• Jessica Carrier
• Kirk Chzanowski
• Christopher Harmon
• William Stanton
• Kurt Maznur
• Thomas Sullivan
• Robert Seigalski
• Demitri Tsilimigras

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When McHenry County State’s Attorney Lou Bianchi held his press conference to announce the First Offender Program, he used this example:

a man who rented a car and then rented to someone else to make some money to support his family and a shoplifter who stole not too much more than the $210 that qualifies for a felony arrest.

Could one of these cases refer to John Doe #3?

Bianchi’s attorney’s statement about the second indictment is here.

I’ll do a separate story on Michael McCleary’s indictment.

Reading that 2008 McHenry County State’s Attorney candidate Dan Regna, who lost big time to embattled State’s Attorney Lou Bianchi, intends to run for the office in 2012, made me think that readers might be interested in the process of replacing a county official.

Now, to talk about that process when Bianchi has given not even a tiny hint that he is considering following the Northwest Herald’s advice that he step down is certainly premature, but let’s lay out who has what power.

Any person appointed to replace any countywide officer would, first, have to a Republican.

That means Tom Cynor, Bianchi’s Democratic Party opponent and lawyer for 22nd District judges, isn’t eligible. Cynor got 38.2% of the fall vote.

McHenry County Board Chairman Ken Koehler would make the nomination, if the selection were to be made before December.

Newly elected county board members will be seated in December and, while Koehler has a Democratic Party opponent in the fall, Mark Booras, the only activity I have seen is his participation in the Lake in the Hills Fall Fest Parade.

So, assuming Koehler wins another term on the County Board and his colleagues elect him chairman again, he would nominate any replacement.

To be appointed, a majority on the County Board would have to vote to approve Koehler’s selection.

So, would Regna be the choice? After all he got 43.3% of the primary vote.

Not necessarily.

Regna, of course, was Sheriff Keith Nygren’s candidate against Bianchi and there are a number of county board members who seem to think there should be a State’s Attorney who would not be beholding to the Sheriff in the way that Regna would be.

Other names are being discussed. Perhaps foremost among them is Crystal Lake attorney Joe Gottemoller.

Others include former Bianchi top assistant, now Chief of the Civil Division, Tom Carroll. Carroll has been making the round of Republican fundraisers.

Demetri Tsilimigras, who heads up the prosecution of misdemeanors for Sttate’s Attorney’s Office has also been mentioned. He is a Republican Precinct Committeeman in Cary and on the leadership team of the Algonquin Township Republican Central Committee.

Others who might be interested include Wes Pribla, who ran in a Republican primary election against Bianchi predecessor Gary Pack and any number of other attorneys who would like to be the chief prosecutor of McHenry County.

But, as I said, it’s way premature to be doing anything but speculating. That’s because there is no indication that a trial will even be held before Bianchi’s term is up in the first week of December 2012.

The following press release comes from the McHenry County State’s Attorney’s Office about collecting fines folks have neglected to pay:

STATE’S ATTORNEY’S OFFICE COLLECTS OVER 145K IN OUTSTANDING FINES AND COSTS FOR McHENRY COUNTY TAXPAYERS

Louis A. Bianchi, McHenry County State’s Attorney, is pleased to announce that in conjunction with the McHenry County Circuit Clerk, Kathy Keefe, that over $145,000 of unpaid fines and court costs has been recovered for the citizens of the County of McHenry in less than a year.

Pursuant to the State’s Attorney’s contract with AllianceOne, a collection agency, the County has successfully recovered this money from delinquent defendants who failed to pay their Court ordered fines and fees due the Circuit Clerk and the County.

This contract was the results of the State’s Attorney’s initiative to pursue the collection of these outstanding fines and costs to help meet the financial needs of the County.

This accomplishment is especially noteworthy since the County pays no portion of the money it collects to the collection agency.

All costs of collection are paid by the delinquent defendants.

= = = = =
I was curious as to how much delinquents have to pay. Chief Deputy State’s Attorney Tom Carroll provided the following information:

“Out of every $100.00 collected, AllianceOne charges an additional $24.00 for them and the SAO/County gets an additional $6.00. The statute provides for an additional 30% charge that can be assessed to the delinquent offender. We were able to negotiate a better deal for the county.”