was the line running through my had as I drove home from the Courthouse.
Judge Joseph McGraw had just acquitted McHenry County State’s Attorney Lou Bianchi of the two remaining counts of official misconduct brought by Special Prosecutors Henry Tonigan and the assistant he picked, Thomas McQueen.
Just as he did on the first try to “get” Lou Bianchi.
A third count in the current case about a young man who was allowed into a First Time Offender program that started after his crime was committed was so weak that McQueen withdrew it at the beginning of the trial.
After arguments and rebuttals for a directed verdict of acquittal had been made, McGraw withdrew to consider and formulate his decision. What he announced would be a 45-minute recess lasted another 20.
The result was a list of reasons behind his decision and an outlining of his thought processes as the “finder of fact,” this being a bench trial.
First McGraw decimated the use of the Equal Protection clause of the Illinois State Constitution.
McQueen had argued that miscreants not “related” (defined quite loosely) to State’s Attorney Investigator Ron Salgado were being discriminated against by Salgado’s purported attempt to assist a 19-year old great step-nephew.
“Felony defendants are not a protected class,” McGraw said referring to part of his decision when he dismissed the Special Prosecutor’s charges against Salgado. Those “not related to Ron Salgado” are not “an identifiable class.”
If McQueen’s arguments were accepted, McGraw said, “It would create (a situation in which) anyone at any time could assert they are a class of one.
“That would swallow up the role of (the Equal Protection under the law clause).”
McGraw ruled as “a matter of law Counts 1 and 3 fail.”
But, as in the first case in which Bianchi assistant Joyce Synek was a co-defendant, McGraw went further.
Bianchi’s attorney explained that not only was there a failure to charge Bianchi properly, there was a failure to proved that Bianchi “committed an act of of official misconduct and he did something he knew by a matter of law he was forbidden to do.”
Addressing McQueen’s contention that Bianchi had a duty to recuse (not participate) in the two cases because of Rule 12 of the Rules of Professional Conduct for Illinois attorneys.
McGraw noted, “It is not plead or alleged, but it’s important to note that I don’t think it applies.”
He read the text, which talks of conflict of interest resulting from concurrently representing more than one client.
“I do not find there will be a material risk (of such a conflict),” he concluded.
McGraw then focused on how Bianchi had acted in both cases. He concluded that no evidence had been presented that either case had not been “handled in the ordinary course of business.”
No special treatment in the disposition of the cases was what I heard.
If the woman wanted the man prosecuted he would have been.
The 4-year, instead of 5-year sentence had been requested by the Public Defender and agreed to by the Assistant State’s Attorney.
McGraw when “even if” then.
“Even if there was evidence that he was (Salgado’s) nephew (even in the colloquial sense), there was no material impediment to his (Bianchi’s) doing his duty.”
Same with the other case, the Judge said.
“I can comment on whether there could be an appearance of impropriety. That’s something that has been offered.
“In each case, the ordinary course of business (led to the ) ultimate outcome.”
In each case, he continued, “the ultimate outcome had been initiated by the defendant’s attorney (and) ultimately received the blessing by Mr. Bianchi and Mr. Harmon (the Public Defender in the 19-year old’s narcotics case) and the disposition was actually entered.”
“None of this affected how Mr. Bianchi performed his duties. It was a matter of “Damned if you do and damned if you don’t”
“Were Mr. Bianchi’s duties to McHenry County citizens (impaired)?
“I cannot find that he had a duty to recuse himself, that, even if he had a duty to recuse himself, that this was not a violation of law.”
The Judge said that recourse on a complaint that a State’s Attorney should have, but did not recuse himself from a case “would be a complaint to the Attorney’s Registration and Disciplinary Commission.”
“I’m not saying reasonable people can’t disagree, (but) I do not find a violation or that (it) amounts (to a) violation of law sufficient (to rise to a criminal offense).”
He said further that the “remedy is for the judge to deal with instanter or notify the ARDC.
“By my ruling, I do not intend to ratify or agree with every decision and what happened in the State’s Attorney’s Office, the remedy (is the ARDC).”
McGraw then spoke of the duty of state’s attorneys.
He said that without a “free standing basis no prosecutor could do his or her job.”
The use of the Rule in question in this case “is not the intention of the Rule.”
He pointed out that the Rules of Professional Conduct are not designed for “civil liability and, one would infer, criminal liability.”
McGraw advised the courtroom that whether what Bianchi did was proper or not was “for the electorate to decide whether he is properly discharging his duties.”
Among findings of fact were that
- the “nephew” is not related to Mr. Salgado
- it has not been proven there has been a disadvantage based on membership in a class of persons (not being a friend of Salgado or a friend/contributor of Bianchi)
- Mr. Bianchi did not fail supervise (non-attorney) Salgado
- there was not any evidence that anyone was discriminated against who were not in the “classes” McQueen argued existed
Then the judge entered a judgment of acquittal.
Monday, McQueen could have completed his case, but announced two witnesses remained. After Monday’s presentation of witnesses, McQueen concluded his case without calling one of the two.
The reason may have been the first, the mother of a young man for whom McQueen charged Bianchi had lowered the sentence from 5 to 4 years because of a personal relationship, testified that Bianchi had told the family the result of the plea agreement outside her son’s courtroom and nothing else. The other announced, but missing witness was the 19-year old’s grandfather, whose name appeared on a Bianchi fund raising invitation list.
After McQueen closed his case Bianchi defense attorney Terry Ekl commenced a blistering of McQueen’s case. You can read his entire motion here.
Back in September. 2010, Ekl called the first case “Chickens**t.” I didn’t ask him if he felt vindicated then, but today out in front of the courthouse, commenting on the second directed verdict for Bianchi, he said, “These charges never should have been brought. It was not a good faith prosecution.
“A state’s attorney is going to make enemies.”
- “Sometimes judges don’t like you.
- “Sometimes lawyers don’t like you.
- “Sometimes police don’t like you.”
Ekl said that state’s attorneys all over Illinois were watching this case.
That a Special Prosecutor could be appointed to second guess a state’s attorney was “a frightening concept.”
He related a person’s observation of the two greatest powers that government has
- to got to war
- to indict
“These Special Prosecutors have abused their power.”
Questions were asked concerning
- whether a civil suit was in the offing
- whether Bianchi would ask taxpayers to pay his legal expenses
- whether Bianchi would run for re-election
The answer to the first question was Lou would look at all aspects. If we do engage in additional litigation, we will go 110%.
The answer to the second question?
“Over the next week or so Lou and I will be sitting down and talking about legal bills.”
Concerning re-election, no real answer either.
Personal feelings of Bianchi and how did the second trial compare with the first?
“I was confident after the first trial and fearful, but less fearful (concerning the second),” Bianchi answered.
Would Bianchi have done anything differently?
“I would not share my sympathy for someone else who had been blasted in the press,” he said.
The Northwest Herald’s story is here.
The Daily Herald story is here.
The Chicago Tribune story is here.
The Chicago Sun-Times story is here.
The Crystal Lake Patch story is here.
The First Electric Newspaper story is here.
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Bianchi had previously scheduled a fund raiser for August 18th. Details below: