I wish it were a joke: Prosecutor prosecuting special prosecutor

By Robert McCoppin, Chicago Tribune reporter

9:28 p.m. CDT, October 6, 2013

More than two years after the McHenry County state's attorney was cleared of misconduct by two trials, the fallout over the ill-fated effort to prosecute the prosecutor continues.

Now, in a highly unusual turn, the state's attorney, as a private citizen, is pursuing criminal proceedings against the man who prosecuted him.

The controversy might have ended in 2011, after State's Attorney Louis Bianchi was found not guilty of misusing his office for campaign work and favoritism. Bianchi then filed a civil suit against the two special prosecutors who were brought in to investigate him and ultimately took him to trial.

But now Bianchi is taking another step in seeking to rectify what his lawyer has called a politically motivated conspiracy to indict him. Bianchi is seeking a criminal contempt of court finding against one of the prosecutors, Thomas McQueen — an effort that, if successful, could result in jail time for McQueen and possibly affect the status of his license to practice law.

As far as those involved can tell, Bianchi's move is rare, and possibly unprecedented. Criminal proceedings against prosecutors are extremely uncommon because they have broad immunity from liability for their conduct on the job.

Bianchi's attorney, Terry Ekl, asserts that McQueen withheld information suggesting Bianchi's innocence. Ekl asserted that Bianchi's latest move against McQueen is an effort to uphold that important principle — not an exercise in vindictiveness.

"These guys have to be held responsible for what they did," Ekl said. "They were essentially trying to frame the guy."

McQueen declined to comment. He has argued in court that he fully complied with the law and is being targeted by an opponent with an ax to grind.

The case hinges on documents that typically don't come out publicly: emails between prosecutors and investigators. When Bianchi filed suit in federal court, investigators turned over 17,000 pages of documents, primarily emails, including some that had never been divulged.

The emails revealed evidence that supported Bianchi's innocence, Ekl argued. For example, they revealed that a computer virus could have corrupted campaign literature Bianchi was accused of directing his staff to produce on county time and equipment. In another example, Ekl said, the emails revealed an interview with a witness that was never disclosed to Bianchi.

The case goes back to 2007, when a former county employee accused Bianchi of making her do campaign work. McQueen and another attorney, Henry "Skip" Tonigan, were subsequently appointed to prosecute Bianchi. After all McHenry County judges recused themselves, the Illinois Supreme Court appointed Circuit Court Judge Joseph McGraw from Winnebago County to handle the case.

In 2011, McGraw cleared Bianchi of all charges at the two trials, both times ruling before the defense even put on its case.

Last year, Bianchi filed a federal civil rights lawsuit against McQueen, Tonigan and a private investigations firm involved in the case. Tonigan later paid $157,000 to settle his part of the case without admitting to wrongdoing. The suit against McQueen and the investigations firm is pending.

Now, with the criminal contempt proceedings pending against McQueen, there's another unusual turning of the tables: Ekl, Bianchi's criminal defense attorney at his two trials, will take the role of prosecutor in an upcoming hearing on the matter, despite objections that Ekl has a conflict of interest.

McGraw, who will also decide the contempt matter, ruled in the case: "The issue before this court is the vindication of this court's orders and its authority. As prosecutor, Attorney Ekl must assume the unique responsibility of being a government prosecutor, which is to pursue justice and guarantee that 'the guilty shall not escape nor the innocent suffer.'"

Bianchi, for his part, also said he was pursuing the sanctions against McQueen on principle, not for personal payback.

"This was an insult to the court," said Bianchi, who was re-elected to a third term as state's attorney following his acquittals. "As prosecutors we have a duty to protect the court."

Ekl told the judge that if he rules in Bianchi's favor, Ekl would not seek more than six months in jail for McQueen. The hearing is set for Dec. 18.

If the judge finds McQueen in contempt, the Attorney Registration and Disciplinary Commission could review the case for potential disciplinary action against McQueen.

Legal fees in the criminal cases against Bianchi cost county taxpayers, who had to pay for both the prosecution and defense of Bianchi, at least $800,000.

Chicago defense attorney Michael Monico, who is not connected with the case, called the whole situation "strange," particularly since Bianchi was never convicted but was cleared of all charges.

"It sounds to me like this is way too personal," Monico said.

rmccoppin@tribune.com