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Appeals court upholds special prosecutors’ fees

A state appellate court ruled that McHenry County must pay the full amount billed by two special prosecutors appointed to investigate State’s Attorney Lou Bianchi, but that the taxpayers paid too much for the computer forensics firm the prosecutors hired.

The 21-page ruling by the panel of three judges of the 2nd District Appellate Court upholds Judge Gordon Graham’s ruling that the county must pay the outstanding $200,349 billed by special prosecutors Henry Tonigan and Thomas McQueen. However, the judges ruled that the $87,854 billed by Quest Consultants should be reduced to exclude certain work.

The special prosecution brought corruption charges against Bianchi and three of his staff members, all of whom were acquitted.

McHenry County Board Chairman Ken Koehler said the county plans to appeal to the Illinois Supreme Court, although he called the court’s overturning of part of Quest’s bill a victory. With the acquittals, Koehler and other County Board leaders who called the entire prosecution a politically motivated witch hunt have worked to lower the bills due and get back some of the amount paid to date.

“We feel that we have a basis for [an appeal], and I think as long as it doesn’t cost the county anything, and we have an opportunity to get further savings, I’m all for it,” said Koehler, R-Crystal Lake.

The county is represented without charge by Charles Colburn of the Illinois Appellate Prosecutor’s Office. Colburn declined to comment on the ruling, stating that the county will make its arguments known in its appeal to the state’s highest court.

The county went to court to challenge the last billing, totaling $288,203. It maintains that Graham erred in appointing Tonigan and McQueen at a rate of $250 an hour each, and has argued that they should have been paid at a rate of $91.50 an hour, which matches the annual salary of the state’s attorney.

Quest, the county argued, charged too much for work that “was almost worthless from an evidentiary standpoint” and that improperly included duties assigned to it by the prosecutors, such as clerical work and doing discovery compliance. The ruling agreed that the court abused its discretion by requiring the county to pay for Quest’s serving of subpoenas, and remanded the case back to Graham to reduce Quest’s fees by the appropriate amount.

Graham in 2009 appointed Tonigan and McQueen to investigate claims from Bianchi’s former secretary that he had her do campaign work for him on taxpayer time. A special grand jury handed down 21 corruption counts against Bianchi, and six against his subsequent secretary, Joyce Synek. Graham authorized Tonigan and McQueen 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.

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 charges against Salgado and McCleary.

Taxpayers have paid more than $525,000 to date on the prosecution, which included a $275,000 settlement with Bianchi and Synek to help pay their legal fees. As part of that 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 agreed to settle the lawsuit, which alleges false arrest, malicious prosecution and conspiracy.

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

At the urging of its McHenry County representatives, state lawmakers passed a bill, signed last month by Gov. Pat Quinn, which significantly curtails a judge’s ability to appoint special prosecutors to investigate alleged crimes where the state’s attorney is unwilling or unable to do so. However, the appellate judges cited the new law in support of its ruling against lowering prosecutors’ fees, a development that Koehler called “a shame.”

The new law does not affect the ongoing case.

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