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Special prosecutors harder to come by

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The taxpayer-funded legal drama created by the prosecution of McHenry County State’s Attorney Lou Bianchi is behind a new law to prevent it from happening elsewhere in Illinois.

Gov. Pat Quinn has signed House Bill 4749, which significantly curtails a judge’s ability to appoint special prosecutors to investigate alleged crimes when the state’s attorney is unwilling or unable to do so.

The bill was inspired by the cost of the special prosecution of Bianchi and three of his staff, which resulted in their acquittal on all charges. McHenry County’s state legislators carried the bill, which passed the General Assembly without a single dissenting vote.

County taxpayers have paid at least $525,000 to date and, despite getting about $100,000 back from a settlement reached in a related civil-rights lawsuit, could be on the hook for more. The new law does not affect the ongoing fight over the cost.

County Board Chairman Ken Koehler, R-Crystal Lake, welcomed the news that Quinn signed the law, but said it is unfortunate that goings on in McHenry County inspired it.

“It’s a relief to know there are some people out there who have an understanding that this thing should not have gone to the extent that it did in McHenry County, and that the taxpayers are the losers,” Koehler said.

Under the new law, a judge contemplating appointing a special prosecutor first must reach out to other public agencies, such as the Illinois Attorney General or other counties’ state’s attorneys, to see whether they can investigate at no cost to the county.

If a special prosecutor cannot be avoided, county government has the right to participate in all agreements regarding the prosecutor’s pay, and has the right to an itemized bill of expenses.

The new law forbids a judge from expanding the scope of a special prosecutor’s investigation without prior notice to county government, which can weigh in on the estimated costs.

Bianchi attorney Terry Ekl said he thinks the changes are fair and reflect the reality of how expensive it can be for a court to appoint a private attorney to be a special prosecutor.

“What’s always bothered me about special prosecutors as opposed to public prosecutors is the financial incentive,” Ekl said. “When you have a private lawyer being paid by the hour, he has incentive or reason to keep the investigation going and to seek an indictment because he gets paid more money. And that shouldn’t be the way the system works.”

McHenry County Judge Gordon Graham appointed special prosecutors Henry Tonigan and Thomas McQueen in 2009 to investigate claims by Bianchi’s former secretary that he had her do campaign work for him on taxpayer time.

A special grand jury handed up 21 corruption counts against Bianchi, and six against his subsequent secretary, Joyce Synek. Graham authorized McQueen and Tonigan to expand their investigation, which resulted in three more charges against Bianchi, and one each against state’s attorney investigators Ron Salgado and Michael McCleary.

County Board members, under court order to pay the prosecutors’ bills, were frustrated by the prosecutor’s lack of itemized bills during the investigation. The board unsuccessfully petitioned Graham to get a look at what taxpayers were paying for.

In two bench trials last year, a Winnebago County judge acquitted Bianchi and Synek of all charges without the defense having to call a single witness. The judge threw out the charges against Salgado and McCleary.

Neither Tonigan nor McQueen could be reached for comment.

In April, another McHenry County judge spared taxpayers a second special prosecution when he rejected an unrelated request by a sheriff’s deputy to appoint a special prosecutor to investigate Sheriff Keith Nygren’s use of a seven-point star for both official and political purposes.

The County Board is fighting an order by Graham to pay an additional $288,201 to Tonigan, McQueen and the computer forensics firm they hired. The county is arguing that they should be paid $91.50 an hour based on the state’s attorney annual salary, not the $250-an-hour rate Tonigan and McQueen charged.

Taxpayers also paid a $275,000 settlement to help pay Bianchi and Synek’s legal fees. As part of the agreement, they agreed to reimburse the county up to the full amount from any damages received from a federal civil-rights lawsuit all four former defendants filed against Tonigan and McQueen.

The county recouped about $100,000 when Tonigan settled last month. While denying culpability, Tonigan agreed to pay $157,500 to settle the suit, which alleges false arrest, malicious prosecution and conspiracy initiated by Bianchi’s political enemies to remove him from office.

The lawsuit still is ongoing against McQueen, who has asked the County Board to pay for his defense.

What it means

House Bill 4749, signed into law Friday by Gov. Pat Quinn, limits judges’ ability to appoint special prosecutors when the county state’s attorney is unwilling or unable to investigate alleged wrongdoing.

• A judge contemplating appointing a special prosecutor must first reach out to other public agencies, such as other counties’ state’s attorneys, to see whether they can investigate at no cost to the county.

• If a special prosecutor cannot be avoided, county government has the right to participate in all agreements regarding pay, and has the right to an itemized bill of expenses.

• A judge cannot expand the scope of investigation without prior notice to county government, which can weigh in on the estimated costs.

Source: Illinois Compiled Statutes

On the Net

You can read the full text of the new law at shawurl.com/bvu.

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