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Will county dodge another special prosecutor?

WOODSTOCK – McHenry County leaders applauded a state law enacted in August aimed at reining in the appointment and cost of special prosecutors.

They are not applauding the possibility that the county that inspired the law might be the first to test it, and barely two months after Gov. Pat Quinn signed it.

The County Board still is fighting the hefty six-figure bill of the special prosecution of State’s Attorney Lou Bianchi – who twice was acquitted – and earlier this year avoided a second request for a special prosecutor to investigate whether Sheriff Keith Nygren misused a seven-point star for political purposes. Now they are watching whether a special prosecutor will be authorized to investigate whether Undersheriff Andy Zinke interfered with a federal drug investigation on behalf of a political ally.

Board Chairman Ken Koehler, R-Crystal Lake, said he is waiting to see whether Bianchi will decide to investigate, or whether the court will need to pursue a special investigator, and whether the county will have to foot the bill.

“I don’t like being the first test case with the new legislation, but we end up having these kinds of prosecutions, whether we want them or not,” Koehler said.

Outgoing Finance and Audit Chairman Scott Breeden, R-Lakewood, was more blunt. Breeden said he is sick of repeated calls for special prosecutors from the county law enforcement building across the street from the County Board.

“It seems to be very popular, when you’re having a conflict, to ask for a special prosecutor instead of working things out,” Breeden said.

In documents filed Tuesday, sheriff’s Sgt. John Koziol alleged that Zinke tipped off the owner of Crystal Lake-based RITA Corp. to a U.S. Drug Enforcement Agency investigation into the transport of thousands of pounds of marijuana on a truck from Mexico that identified the business as one of its destinations. Owner Brian Goode is a member of the sheriff’s office Merit Commission, and RITA’s address is listed as the headquarters for Zinke’s campaign for the 2014 sheriff’s race.

Zinke has called Koziol a disgruntled employee who is angry that he was transferred out of the narcotics unit to patrol. Koziol’s attorney, divorce attorney Jonathan Nye, has connections to Jim Harrison, who is running against Zinke.

Judge Thomas A. Meyer on Thursday gave Bianchi a week to decide what to do. Bianchi has said in the past that he cannot defend the sheriff on some cases and prosecute him on others.

If a special prosecutor is needed, the new law sets limits on Meyer’s authority to appoint one.

A judge contemplating appointing a special prosecutor when the state’s attorney is unwilling or unable to investigate must reach out to other public agencies, such as neighboring state’s attorneys or the Attorney Genera’s Officel, to see whether they can investigate at no cost to the county. If a special prosecutor can’t be avoided, the County Board has the right to participate in all agreements regarding the prosecutor’s pay, and has the right to an itemized bill of expenses. Judges cannot expand the scope of an investigation without giving notice to the County Board, which can weigh in on the estimated costs.

The law was inspired by the cost of the prosecution of Bianchi by special prosecutors Henry Tonigan and Thomas McQueen. The prosecutors, empowered by Judge Gordon Graham, brought 24 corruption charges against Bianchi, six against his secretary and one each against two of his investigators. All charges were dismissed in court last year without any defense attorney having to call a single witness.

County taxpayers have paid more than $525,000 to date for that prosecution. The county recouped about $100,000 when Tonigan settled a federal civil-rights lawsuit filed against him by the former defendants. However, an appeals court ruled last month that the county must pay about $287,000 outstanding to the special prosecutors and the computer forensics firm they retained. And McQueen, who is still fighting the civil-rights lawsuit in court, has asked the county to pay for his defense.

Judge Meyer in April rejected Deputy Zane Seipler’s request for a special prosecutor to investigate Nygren’s use of the seven-point star. The $26,151 the county paid to defend against that request does not include the costs of Seipler’s successful effort to win back his job or his ongoing federal lawsuit alleging that he was fired out of retaliation for blowing the whistle on alleged racial profiling in the sheriff’s office.

Koehler and Breeden said the unknown costs of special prosecutors can wreak havoc on county budgeting. The unknown costs of the Bianchi case frequently were cited earlier this year as County Board members began discussing whether staff wage increases and a freeze of the county levy for 2013 were feasible.

“It’s very difficult to look ahead when you have people asking for special prosecutors, which we have no control over whatsoever,” Breeden said. “As we well know, it could end up being $50,000, it could end up being $500,000. It’s concerning, there’s no doubt about it.”

Koehler declined to comment on the merits of the latest case on the grounds that it is an ongoing investigation. Breeden, who is not running for re-election, lumped this latest request with the other two.

“All of this is sour grapes, and I personally, as a resident of McHenry County, am tired of it. You can quote me on that,” Breeden said.

Goode on Friday released a statement that the truck from which the marijuana was seized was a common carrier that did not belong to the company, and that the company has no knowledge of, and was not involved with the drugs being on the same truck as raw materials being shipped to the Crystal Lake company.

“Please rest assured that RITA Corporation was a victim and not a participant in this matter,” Goode said.

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