McHenry County State’s Attorney’s Investigator Michael McCleary was in Rockford Judge Joseph McGraw’s courtroom Friday afternoon listening to his attorney argue the Special Prosecutor’s indictment should be dismissed.
His Rockford attorney, Christopher DeRango started by pointing out that the statutory reference contained in the indictment did not exist.
He contended it was not a “scrivener’s error,” that is, a typographic mistake because the reference was the same as that presented to the Grand Jury.
Special Prosecutor Thomas McQuenn, filling in for Henry Tonigan, contended it was just a simple mistake.
DeRango also contended that citing the Illinois State Constitutional prohibition of converting public assets to private use was not specific enough for McCleary to know what crime he was being accused of committing.
“How did he exceed his authority?” the defense attorney asked.
The charge pointed to the McHenry County Personnel Policy as authority, but DeRango argued that for such a policy to have authority that it had to have been adopted by a legislative body. He could not find that occurred.
McQueen offered no minutes to show adoption, but said, when asked by Judge McGraw whether it had been passed by a vote of the McHenry County Board, “That is my understanding.”
Also offered up by the Special Prosecutor was the County Vehicle Policy, which refers to all rules.
DeRango said, that he “cannot bootstrap in delegated authority and have them the same authority as the legislatively adopted policy.”
In addition, McCleary’s attorney argued that McQueen’s charges “don’t allege he violated the Vehicle Policy…(just) the Personnel Policy.”
And, there was a second reason for dismissal offered—prosecutorial misconduct during the Grand Jury proceedings.
“Even the McHenry County Vehicle Policy does not require the things the Prosecutor argues it does,” DeRango asserted.
He pointed to three exceptions, all of which referred to McCleary.
He also complained that McQueen offered evidence to the Grand Jury himself, rather than from a sworn witness.
“McQueen essentially testifies to the Grand Jury,” he pointed out calling him “an unsworn entity.”
“The Grand Jury was led to believe it (the Vehicle Policy) created a uniform policy that does not first have a corresponding public benefit.”
He suggested the State’s Attorney having “an investigator out serving the needs of the prosecution” provided the necessary “public benefit.”
DeRango charged that the Special Prosecutor’s miscues had a “cumulative effect “that “served to mislead the Grand Jury. They simply rubber stamped the indictment they were given.”
This, in addition to the indictment’s being defective on its face by failing to identify a criminal statute that had been violated meant the Judge should toss the criminal charges, McCleary’s lawyer contented.
McQueen stressed that the county car was the only vehicle that McCleary had used for the last five years, that it was intended to be available in emergencies, not for “seven days a week, twenty-four hours a day.”
“There is not public benefit in Mr. McCleary’s making use of a public vehicle for five years as his only car,” he reiterated.
Judge McGraw then started asking questions, first about reference ro the Grand Jury about Mr. McCleary’s having asserted his Fifth Amendment rights not to testify against himself.
“I acknowledge I made a misstatement,” McQueen replied.
“What about the Personnel Policy not (having been) enacted by the county board?” the Judge continued.
“I believe that has been adopted by the county,” McQueen answered.
Judge McGraw next tried to untangle the requirement of the head of a department, in this case Lou Bianchi, having to write a letter to the County Administrator asking permission for his employee McCleary to use a county car for personal business.
How could McCleary be held responsible for the failure of the State’s Attorney to do that, he wondered.
Had Bianchi done that, “it would have negated the criminal charge brought against Mr. McCleary,” McQueen explained.
“The request should have come from Mr. Bianchi,” the Judge continued. “You’re saying Mr. McCleary has committee public misconduct. How does that make Mr. McCleary in violatino of the law?”
McQueen argued that the approval was missing for McCleary’s use of the vehicle.
“What is it Mr. McCleary did that he knew he shouldn’t do?” Judge McGraw continued.
“An employee cannot rely on the conduct of his employer not to act,” was McQueen’s answer.
“What did he need to know?”
“”That he is not supposed to use the car for private purposes,” McQueen replied.
“If the document had been in the material (provided in reply to the subpoena of the State’s Attorney’s Office), there would have been no criminal charge.”
“(Mr. McCleary doesn’t have to file that document,” the Judge observed before saying,
“I’ll give you a written decision.”
Then he moved onto the case against State’s Attorney Bianchi.
Special Prosecutor Henry Tonigan was a no show in Rockford.