Sunday, January 02, 2011
Lou Bianchi's Reply in Support of Motion to Compell Discovery
STATE OF ILLINOIS ))
COUNTY OF MCHENRY )
PEOPLE OF THE STATE OF ILLINOIS
Plaintiff, ))
LOUIS A. BIANCHI, )
Defendant
NOW COMES, the Defendant, LOUIS A. BIANCHI, by and through his attorney, Ekl
Williams, LLC., and for his Reply in Support of the Motion to Compel Discovery states as
follows:
The issue in this Motion to Compel is not what the Special Prosecutors have turned over
to the Defendant. The quantity of documents produced is not the issue. The fact that the Special
Prosecutors have turned over a hard drive of a computer with thousands of irrelevant documents
is not the issue. The issue is what they have failed to turn over despite a legal obligation to do so
under the Supreme Court Rules. There are three categories of documents which are requested in
the Defendant’s Motion to Compel:
#1. Pursuant to Supreme Court Rule 412 (a) (i), “all written, or recorded statements,
memoranda containing substantially verbatim reports of oral statements, and a
list of memoranda reporting or summarizing the oral statements” for all
witnesses the prosecution intends to call at the trial of this case.
#2 The transcripts of all witnesses who testified before the Grand Jury in connection
with this case.
#3 The Grand Jury transcripts of all colloquy which transpired between the Special
Prosecutors and the grand jurors.
The Special Prosecutors claim that they have satisfied their obligation under Supreme
Court Rule 412 (a) (i) but they do not appear to understand the scope of their obligation. The
Defendant is entitled to production of all memorandum reporting or summarizing oral statements
made by any prosecution witness. This requirement includes handwritten notes made by the
Special Prosecutors or their investigators at the time of the interview with the witness. Rather
than addressing this straight forward issue, the Special Prosecutors instead choose to respond by
claiming the Defendant is requesting “a wholesale review of all notes and internal workings of
the prosecutor’s office” (see Special Prosecutor Response page 3). Any reasonable analysis of
the Defendant’s present requests would reveal that this argument lacks merit. Unfortunately, the
Special Prosecutors appear to be unaware of their obligation, under the Supreme Court Rules, to
furnish to the Defendant all memorandum summarizing oral statements of prosecution witnesses.
The Defendant would direct the Special Prosecutor’s attention to the committee
comments to Supreme Court Rule 412 wherein their duty is clearly established:
"Paragraph (a), subparagraph (i) requires the additional production of any substantially
verbatim report of an oral statement by a witness. The State is also obligated to produce
a list of all memoranda reporting or summarizing oral statements whether or not the
memorandum appears to the State to be substantially verbatim reports of statements. The
defense is then entitled, upon filing of a written motion, to have the court examine the
memoranda listed by the State.” People v. Szabo, 94 Ill.2d 327 (1983)
In the Motion to Compel the Defendant provides to this Court evidence that during the
interview of at least one named prosecution witness that copious contemporaneous handwritten
notes were made by one of the prosecutor’s investigators. The Defendant is entitled to the
production of all handwritten notes summarizing a witness’ oral statements, including those of
the Special Prosecutors. People v. Szabo, supra. In the event there is an issue as to whether the
notes are a summary of the oral statement of the witness, the memorandum should be submitted
to the Court for an in camera inspection. [Foot Note 1] People v. Szabo, supra.
= = = = =
Foot Note 1 The Court, in it’s discretion may also redact any mental impressions or other work
product contained on the documents.
= = = = =
The Defendant also pointed out in the Motion to Compel the failure of the Special
Prosecutors to produce the reports and/or notes of the witnesses that Mr. Tonigan claims were
interviewed in his letter to Judge Graham dated November 18, 2009 (See the letter, attached as
Exhibit B to the Motion to Compel). The Special Prosecutor ignores the issue before the court -
whether there exists memoranda of these purported witness interviews? Rather, they discuss
their review of the documents relating to the prosecution of Amy Dalby for the theft of computer
records of the McHenry County State’s Attorney’s Office. These records have nothing to do with
the production of the witness statements referenced in Mr. Tonigan’s letter. Specifically, the
Defendant is requesting production of the memoranda reflecting the interviews of witnesses who
are alleged, in the Tonigan letter of November 18, 2009, to have told the Special Prosecutors
and/or their investigators the following:
(a) That Mr. Bianchi performed illegal acts regarding the misuse or theft of County
funds by means of the reimbursement practice through at least June of 2007
(b) Mr. Bianchi’s staff performed political services for Mr. Bianchi while being paid
by the County from 2006 through 2008.
(c) Mr. Bianchi utilized County vehicles for his personal and political use.
According to the November 18, 2009 letter Mr. Tonigan sent to Judge Graham, he and Mr.
McQueen had talked to a “number of witnesses and their attorneys” since their appointment as
Special Prosecutors in September of 2009 (See Exhibit B to Motion to Compel). Mr. Tonigan
specifically mentions that one of the witnesses interviewed by he and Mr. McQueen was Amy
Dalby. No memorandum of a witness interview with Amy Dalby, at any time, has been produced
by the Special Prosecutors. In fact, the earliest of any witness interview memoranda produced
relates to an interview of David Stone on March 4, 2010. In other words the Special Prosecutor
has produced no memoranda of any witness interview conducted prior to March 4, 2010.
The Special Prosecutors have failed to explain to this Court their failure to turn over any
memorandum from any witness interview conducted by them prior to March of 2010. They
acknowledge that they interviewed witnesses prior to that date. Do memorandum exist and they
do not recognize their duty to disclose these documents to the defense? Did they deliberately fail
to generate memorandum of any witness statement? Did they take notes which were then
destroyed to avoid production to the defense? This Court must require the Special Prosecutors to
explain why there is a total absence of production of memorandum for any witness interview
conducted prior to an interview on March 4, 2010.
The Special Prosecutors are very clear in claiming that they have produced “grand jury
transcripts “of ALL 13 witnesses who have appeared in the Grand Jury” (See Response to
Motion to Compel, pg. 1). They claim, in their Response that “we have provided counsel with
the testimony of every witness who appeared before the Grand Jury, including some who may not
ultimately be trial witnesses” (See Response, pg. 4) . Normally, the Defendant would accept that
representation and withdraw that portion of this Motion to Compel. Unfortunately, in this case it
is clear that the representation of the Special Prosecutors is simply not true.
For example, the thirteen (13) Grand Jury transcripts provided did not include the
testimony of Michael McCleary who testified before the Grand Jury during it’s investigation of
this case on October 1, 2010. The affidavit of Mr. McCleary’s attorney, Jerome C. Majewski, is
attached as Exhibit A.
This Court has the discretion pursuant to Supreme Court Rule 412 (h) to order the Special
Prosecutors to produce to the Defendant the colloquy which took place between the Special
Prosecutors and the Grand Jury. This rule sets forth that the Court may grant such additional
disclosures as are reasonable and relevant to the Defendant’s defense. Pursuant to Supreme
Court Rule 412 (i) the Court should deny a discretionary disclosure under Rule 412 (h) which
would result in “substantial risk to any person of physical harm, intimidation, bribery, economic
reprisals, or unnecessary annoyance or embarrassment resulting from such disclosure”. The
concerns raised in Rule 412 (i) do not exist in this case. Furthermore, it is clear from the
pagination of the Grand Jury transcripts previously produced that the colloquy has been typed
and is available for production without additional time or expense to the prosecution. Despite
the fact that all of the Grand Jury proceedings were transcribed and already typed up, the Special
Prosecutors selectively chose to remove certain pages from the transcripts that were tendered to
the defense. [Foot Note 2]
= = = = =
Foot Note 2 For example, on September 10, 2010 a witness by the name of Robert Scigalski
testified before the Grand Jury. His testimony ended on the page bates stamped 03580, which
was page 13 of the transcript. At the bottom of page 13 Mr.McQueen is making statements to the
grand jurors. The next page provided to the defense is numbered page 35. (These pages of the
Grand Jury transcripts are attached as Exhibit B)
Additionally, on July16, 2010 Daniel Jerger testified before the Grand Jury during which
he was asked a series of questions by the jurors. Following a question asked by one of the jurors
Mr. McQueen indicated that he would address the question at a later point and the witness was
excused. The Defendant has not been furnished the pages of the transcript wherein Mr.
McQueen answered the juror’s question. (See pages 57-59 and page 67 of the transcript of
Grand Jury testimony from July 16, 2010 attached as Exhibit C)
= = = = =
It is clear that the dismissal of an indictment is warranted and that the due process rights
of the Defendant are violated if the Grand Jury is deliberately and intentionally misled by the
prosecutors. People v. Barton, 190 Ill.App.3d 701 (5th Dist. 1989). Contrary to the self-serving
claims of the Special Prosecutor, it is clear to the Defendant that the Grand Jury was misled by
the Special Prosecutors as to those acts which an elected State’s Attorney is lawfully permitted to
engage in. [Foot Note 3]
= = = = =
Foot Note 3 By way of example, the Special Prosecutors were clearly advising the Grand Jury
that participation in a parade, on behalf of the McHenry County State’s Attorney’s Office, was
prohibited political activity.(See the transcript of the testimony of Dawn Barwan on July 2, 2010
at page 47 attached as Exhibit D). One of the central theories of the Special Prosecutors in this
case is that walking in a parade or participating in a community awareness expo on a weekend on
behalf of the McHenry County State’s Attorney’s Office is a “political” event for which the
participants can not receive “comp time”.
= = = = =
Furthermore, the transcripts presented are void of any testimony to establish aconspiracy or agreement between Lou Bianchi and anyone else to violate the law.
The actions of the Special Prosecutor since their appointment to investigate the claims of
Amy Dalby that she performed “political work” while working in the State’s Attorney’s Office
between 2005 and June of 2006 have demonstrated a pattern of abusing the due process rights of
the Defendant through the improper use of the Grand Jury. In support of this statement the
Defendant states the following:
1. As set forth in the Defendant’s Motion to Dismiss, the Special Prosecutors
illegally sought to expand their lawful authority as Special Prosecutors by
engaging in ex parte communication with Judge Graham and without the filing of
a petition sought to expand their authority. The full scope of this improper
behavior is set forth in the Motion to Dismiss.
2. On Friday, September 10, 2010, an investigator arrived an the McHenry County
State’s Attorney’s Office at 8:55 a.m. to serve a Grand Jury subpoena duces tecum
requiring the production at 9:00 a.m. that same day of a hard drive of a computer
used by an employee of the State’s Attorney’s Office. The computer was then
disassembled and the hard drive was removed from the office at the direction of
the Special Prosecutor’s investigator. ( A copy of the served subpoena duces
tecum is attached as Exhibit E). The bill of indictment against the Defendant was
returned on September 9, 2010 and the material sought by this subpoena duces
tecum could not have been considered by the Grand Jury in returning their
indictment. As stated in People v. DeLaire, 240 Ill.App.3d 1012, 1023 (2nd
District 1993), “the purpose of the subpoena must be to produce evidence for use
of the grand jury” and a prosecutor may not use the subpoena as a “ruse to obtain
information”. The issuance of this subpoena duces tecum by the Special
Prosecutors was a clear abuse of the Grand Jury process.
3. On October 22, 2010, approximately six (6) weeks after the return of this
indictment, the Special Prosecutors continued to use the Grand Jury to investigate
this case by calling at least one witness, Richard Stilling, before the Grand Jury to
provide testimony directly related to the accusations in the present
indictment.(The transcript of Mr. Stilling testimony is attached as F) It is
improper for the Special Prosecutors to continue to investigate the matters
contained in this indictment through use of the Grand Jury after the return of the
indictment. People v. DeLaire, 240 Ill. App.3d 1012, 1029 (2nd District 1993).
Any investigation that focuses on the facts already covered by the indictment is
improper because the inquiry of the Grand Jury has ended. People v. DeLaire,
supra.
4. It has been widely reported, following a leak to the media, that the Special
Prosecutors are now using the Grand Jury to investigate Mr. Bianchi’s handling of
individual criminal prosecutions. (Copies of media stories attached as Exhibit G).
The Special Prosecutors have no lawful authority to use the Grand Jury to
allegedly investigate individual cases prosecuted by the McHenry County State’s
Attorney’s Office. [Foot Note 4]
= = = = =
Foot Note 4 Mr. Tonigan represented to this Court on December 3, 2010 that all petitions and
orders relevant to their authority were tendered to the defense. No order purporting to expand the
authority of the Special Prosecutors to permit them to investigate the handling of specific
criminal cases has been tendered. (See pages 5-6 of the transcript of proceedings on December 3,
2010 attached as Exhibit H)
= = = = =
It is particularly alarming when this unauthorized investigation
makes it way to the news media in an obvious attempt to further diminish the
Defendant’s reputation in the community from which potential jurors will be
selected.
5. Count I of the instant indictment alleges that “the defendants did conspire with
each other and with others known and unknown to the Grand Jury” to commit
official misconduct and obstruction of justice. On December 3, 2010, this Court
ordered the Special Prosecutors to disclose the names of those co-conspirators
known to the Grand Jury to have allegedly entered into this conspiracy with the
Defendants. In response, the Special Prosecutors disclosed the names of Ronald
Salgado, Karen Rhodes, Michael McCleary and Nancy Prioletti. As to all four (4)
individuals, absolutely no evidence was presented to the Grand Jury from which
any reasonable, fair-minded prosecutor could contend that these individuals
participated in the conspiracy charged in Count I of the Indictment. For example,
Nancy Prioletti’s name was mentioned only three times in response to questioning
of witnesses before the Grand Jury which returned this indictment.
(a) Amy Dalby
Q: Who were the members of that committee (campaign)?
A: I remember that Nancy Prioletti didn’t work at the office, but she
was one of his campaign managers.
(Pg. 21 of Dalby transcript attached as Exhibit I)
(b) Karen Rhodes
Q: Other members (of campaign committee)?
10
A: Nancy Prioletti.
Q: And who is Ms. Prioletti?
A: She’s a neighbor of Mr. Bianchi.
Q: And did she have an administrative function with the committee
(campaign) at any time?
A: She’s the chairman
(Pgs. 35-36 of Rhodes transcript attached as Exhibit J)
(c) Joyce Synek
Q: Who were the people on his political campaign committee,
ma’am?
A: I – I know some.
Q: Who are the ones that you know, ma’am?
A: Nancy Prioletti.
Q: And would you spell her last name for the records, please?
A: P, as in Peter, -r-i-o-l-e-t-t-i.
Q: She is not an employee of the County of McHenry, is that correct?
A: Yes
(Pg. 81 of Synek transcript attached as Exhibit K)
In a blatant and reprehensible act, these Special Prosecutors have disclosed to the entire
community that Nancy Prioletti conspired with the Defendants and others to commit criminal
acts based upon testimony before the Grand Jury which established that she was Lou Bianchi’s
neighbor and that she served on his campaign committee.
The request for the Grand Jury colloquy is made in good faith by the defense and will
result in no prejudice to the Special Prosecutors unless the transcripts reveal misconduct on their
part. It is not for the Special Prosecutor to determine what is and is not material to the defense.
Only the defense can possibly make such a determination. The Defendant has made more than
an adequate showing that the transcripts are material to his defense.
Furthermore, the Special Prosecutors fail to present any legitimate reason why the
transcripts should not be disclosed to the defense. Simply arguing “we don’t want to disclose the
transcripts” is not a legitimate argument for the prosecution to make during a criminal
proceedings when his liberty and future is at stake.
The transcripts of the colloquy have been typed and are available for production without
significant effort. If no such misconduct occurred then there has been no harm. If, however,
misrepresentations of the law or other prejudicial acts were committed by the Special Prosecutors
the Defendant will be in a position to assert his due process rights.
As to the first two categories of documents which are requested in the Motion to Compel,
the Special Prosecutors are ignoring their absolute obligation under Supreme Court Rule 412.
The Special Prosecutors must disclose all memorandum containing substantially verbatim reports
of oral statements of witnesses, including handwritten notes. Furthermore, despite the Special
Prosecutors’ representation in their Response, it is simply not true that the transcripts of every
witness who appeared before the Grand Jury was tendered.
As to the third category of material requested in this Motion, the Defendant has
demonstrated that the Grand Jury colloquy is material to his defense and therefore the entire
transcript of the Grand Jury proceedings should be tendered.
Respectfully submitted;
Terry A. Ekl, attorney for Louis A. Bianchi
Terry A. Ekl
Tracy L. Stanker
901 Warrenville Rd.
Suite 175
Lisle, Illinois 60532
(630) 654-1624
ARDC #727105
COUNTY OF MCHENRY )
IN THE CIRCUIT COURT OF THE TWENTY-SECOND JUDICIAL CIRCUIT
MCHENRY COUNTY, ILLINOIS
PEOPLE OF THE STATE OF ILLINOIS
Plaintiff, ))
vs. ) NO. 10 CF 933
))LOUIS A. BIANCHI, )
Defendant
REPLY IN SUPPORT OF MOTION TO COMPEL DISCOVERY
NOW COMES, the Defendant, LOUIS A. BIANCHI, by and through his attorney, Ekl
Williams, LLC., and for his Reply in Support of the Motion to Compel Discovery states as
follows:
The issue in this Motion to Compel is not what the Special Prosecutors have turned over
to the Defendant. The quantity of documents produced is not the issue. The fact that the Special
Prosecutors have turned over a hard drive of a computer with thousands of irrelevant documents
is not the issue. The issue is what they have failed to turn over despite a legal obligation to do so
under the Supreme Court Rules. There are three categories of documents which are requested in
the Defendant’s Motion to Compel:
#1. Pursuant to Supreme Court Rule 412 (a) (i), “all written, or recorded statements,
memoranda containing substantially verbatim reports of oral statements, and a
list of memoranda reporting or summarizing the oral statements” for all
witnesses the prosecution intends to call at the trial of this case.
#2 The transcripts of all witnesses who testified before the Grand Jury in connection
with this case.
#3 The Grand Jury transcripts of all colloquy which transpired between the Special
Prosecutors and the grand jurors.
Production of all Memorandum of Witness Statements
The Special Prosecutors claim that they have satisfied their obligation under Supreme
Court Rule 412 (a) (i) but they do not appear to understand the scope of their obligation. The
Defendant is entitled to production of all memorandum reporting or summarizing oral statements
made by any prosecution witness. This requirement includes handwritten notes made by the
Special Prosecutors or their investigators at the time of the interview with the witness. Rather
than addressing this straight forward issue, the Special Prosecutors instead choose to respond by
claiming the Defendant is requesting “a wholesale review of all notes and internal workings of
the prosecutor’s office” (see Special Prosecutor Response page 3). Any reasonable analysis of
the Defendant’s present requests would reveal that this argument lacks merit. Unfortunately, the
Special Prosecutors appear to be unaware of their obligation, under the Supreme Court Rules, to
furnish to the Defendant all memorandum summarizing oral statements of prosecution witnesses.
The Defendant would direct the Special Prosecutor’s attention to the committee
comments to Supreme Court Rule 412 wherein their duty is clearly established:
"Paragraph (a), subparagraph (i) requires the additional production of any substantially
verbatim report of an oral statement by a witness. The State is also obligated to produce
a list of all memoranda reporting or summarizing oral statements whether or not the
memorandum appears to the State to be substantially verbatim reports of statements. The
defense is then entitled, upon filing of a written motion, to have the court examine the
memoranda listed by the State.” People v. Szabo, 94 Ill.2d 327 (1983)
In the Motion to Compel the Defendant provides to this Court evidence that during the
interview of at least one named prosecution witness that copious contemporaneous handwritten
notes were made by one of the prosecutor’s investigators. The Defendant is entitled to the
production of all handwritten notes summarizing a witness’ oral statements, including those of
the Special Prosecutors. People v. Szabo, supra. In the event there is an issue as to whether the
notes are a summary of the oral statement of the witness, the memorandum should be submitted
to the Court for an in camera inspection. [Foot Note 1] People v. Szabo, supra.
= = = = =
Foot Note 1 The Court, in it’s discretion may also redact any mental impressions or other work
product contained on the documents.
= = = = =
The Defendant also pointed out in the Motion to Compel the failure of the Special
Prosecutors to produce the reports and/or notes of the witnesses that Mr. Tonigan claims were
interviewed in his letter to Judge Graham dated November 18, 2009 (See the letter, attached as
Exhibit B to the Motion to Compel). The Special Prosecutor ignores the issue before the court -
whether there exists memoranda of these purported witness interviews? Rather, they discuss
their review of the documents relating to the prosecution of Amy Dalby for the theft of computer
records of the McHenry County State’s Attorney’s Office. These records have nothing to do with
the production of the witness statements referenced in Mr. Tonigan’s letter. Specifically, the
Defendant is requesting production of the memoranda reflecting the interviews of witnesses who
are alleged, in the Tonigan letter of November 18, 2009, to have told the Special Prosecutors
and/or their investigators the following:
(a) That Mr. Bianchi performed illegal acts regarding the misuse or theft of County
funds by means of the reimbursement practice through at least June of 2007
(b) Mr. Bianchi’s staff performed political services for Mr. Bianchi while being paid
by the County from 2006 through 2008.
(c) Mr. Bianchi utilized County vehicles for his personal and political use.
According to the November 18, 2009 letter Mr. Tonigan sent to Judge Graham, he and Mr.
McQueen had talked to a “number of witnesses and their attorneys” since their appointment as
Special Prosecutors in September of 2009 (See Exhibit B to Motion to Compel). Mr. Tonigan
specifically mentions that one of the witnesses interviewed by he and Mr. McQueen was Amy
Dalby. No memorandum of a witness interview with Amy Dalby, at any time, has been produced
by the Special Prosecutors. In fact, the earliest of any witness interview memoranda produced
relates to an interview of David Stone on March 4, 2010. In other words the Special Prosecutor
has produced no memoranda of any witness interview conducted prior to March 4, 2010.
The Special Prosecutors have failed to explain to this Court their failure to turn over any
memorandum from any witness interview conducted by them prior to March of 2010. They
acknowledge that they interviewed witnesses prior to that date. Do memorandum exist and they
do not recognize their duty to disclose these documents to the defense? Did they deliberately fail
to generate memorandum of any witness statement? Did they take notes which were then
destroyed to avoid production to the defense? This Court must require the Special Prosecutors to
explain why there is a total absence of production of memorandum for any witness interview
conducted prior to an interview on March 4, 2010.
Transcripts of the Testimony of All Witnesses who Testified Before the Grand Jury
The Special Prosecutors are very clear in claiming that they have produced “grand jury
transcripts “of ALL 13 witnesses who have appeared in the Grand Jury” (See Response to
Motion to Compel, pg. 1). They claim, in their Response that “we have provided counsel with
the testimony of every witness who appeared before the Grand Jury, including some who may not
ultimately be trial witnesses” (See Response, pg. 4) . Normally, the Defendant would accept that
representation and withdraw that portion of this Motion to Compel. Unfortunately, in this case it
is clear that the representation of the Special Prosecutors is simply not true.
For example, the thirteen (13) Grand Jury transcripts provided did not include the
testimony of Michael McCleary who testified before the Grand Jury during it’s investigation of
this case on October 1, 2010. The affidavit of Mr. McCleary’s attorney, Jerome C. Majewski, is
attached as Exhibit A.
Grand Jury Colloquy
This Court has the discretion pursuant to Supreme Court Rule 412 (h) to order the Special
Prosecutors to produce to the Defendant the colloquy which took place between the Special
Prosecutors and the Grand Jury. This rule sets forth that the Court may grant such additional
disclosures as are reasonable and relevant to the Defendant’s defense. Pursuant to Supreme
Court Rule 412 (i) the Court should deny a discretionary disclosure under Rule 412 (h) which
would result in “substantial risk to any person of physical harm, intimidation, bribery, economic
reprisals, or unnecessary annoyance or embarrassment resulting from such disclosure”. The
concerns raised in Rule 412 (i) do not exist in this case. Furthermore, it is clear from the
pagination of the Grand Jury transcripts previously produced that the colloquy has been typed
and is available for production without additional time or expense to the prosecution. Despite
the fact that all of the Grand Jury proceedings were transcribed and already typed up, the Special
Prosecutors selectively chose to remove certain pages from the transcripts that were tendered to
the defense. [Foot Note 2]
= = = = =
Foot Note 2 For example, on September 10, 2010 a witness by the name of Robert Scigalski
testified before the Grand Jury. His testimony ended on the page bates stamped 03580, which
was page 13 of the transcript. At the bottom of page 13 Mr.McQueen is making statements to the
grand jurors. The next page provided to the defense is numbered page 35. (These pages of the
Grand Jury transcripts are attached as Exhibit B)
Additionally, on July16, 2010 Daniel Jerger testified before the Grand Jury during which
he was asked a series of questions by the jurors. Following a question asked by one of the jurors
Mr. McQueen indicated that he would address the question at a later point and the witness was
excused. The Defendant has not been furnished the pages of the transcript wherein Mr.
McQueen answered the juror’s question. (See pages 57-59 and page 67 of the transcript of
Grand Jury testimony from July 16, 2010 attached as Exhibit C)
= = = = =
It is clear that the dismissal of an indictment is warranted and that the due process rights
of the Defendant are violated if the Grand Jury is deliberately and intentionally misled by the
prosecutors. People v. Barton, 190 Ill.App.3d 701 (5th Dist. 1989). Contrary to the self-serving
claims of the Special Prosecutor, it is clear to the Defendant that the Grand Jury was misled by
the Special Prosecutors as to those acts which an elected State’s Attorney is lawfully permitted to
engage in. [Foot Note 3]
= = = = =
Foot Note 3 By way of example, the Special Prosecutors were clearly advising the Grand Jury
that participation in a parade, on behalf of the McHenry County State’s Attorney’s Office, was
prohibited political activity.(See the transcript of the testimony of Dawn Barwan on July 2, 2010
at page 47 attached as Exhibit D). One of the central theories of the Special Prosecutors in this
case is that walking in a parade or participating in a community awareness expo on a weekend on
behalf of the McHenry County State’s Attorney’s Office is a “political” event for which the
participants can not receive “comp time”.
= = = = =
Furthermore, the transcripts presented are void of any testimony to establish aconspiracy or agreement between Lou Bianchi and anyone else to violate the law.
The actions of the Special Prosecutor since their appointment to investigate the claims of
Amy Dalby that she performed “political work” while working in the State’s Attorney’s Office
between 2005 and June of 2006 have demonstrated a pattern of abusing the due process rights of
the Defendant through the improper use of the Grand Jury. In support of this statement the
Defendant states the following:
1. As set forth in the Defendant’s Motion to Dismiss, the Special Prosecutors
illegally sought to expand their lawful authority as Special Prosecutors by
engaging in ex parte communication with Judge Graham and without the filing of
a petition sought to expand their authority. The full scope of this improper
behavior is set forth in the Motion to Dismiss.
2. On Friday, September 10, 2010, an investigator arrived an the McHenry County
State’s Attorney’s Office at 8:55 a.m. to serve a Grand Jury subpoena duces tecum
requiring the production at 9:00 a.m. that same day of a hard drive of a computer
used by an employee of the State’s Attorney’s Office. The computer was then
disassembled and the hard drive was removed from the office at the direction of
the Special Prosecutor’s investigator. ( A copy of the served subpoena duces
tecum is attached as Exhibit E). The bill of indictment against the Defendant was
returned on September 9, 2010 and the material sought by this subpoena duces
tecum could not have been considered by the Grand Jury in returning their
indictment. As stated in People v. DeLaire, 240 Ill.App.3d 1012, 1023 (2nd
District 1993), “the purpose of the subpoena must be to produce evidence for use
of the grand jury” and a prosecutor may not use the subpoena as a “ruse to obtain
information”. The issuance of this subpoena duces tecum by the Special
Prosecutors was a clear abuse of the Grand Jury process.
3. On October 22, 2010, approximately six (6) weeks after the return of this
indictment, the Special Prosecutors continued to use the Grand Jury to investigate
this case by calling at least one witness, Richard Stilling, before the Grand Jury to
provide testimony directly related to the accusations in the present
indictment.(The transcript of Mr. Stilling testimony is attached as F) It is
improper for the Special Prosecutors to continue to investigate the matters
contained in this indictment through use of the Grand Jury after the return of the
indictment. People v. DeLaire, 240 Ill. App.3d 1012, 1029 (2nd District 1993).
Any investigation that focuses on the facts already covered by the indictment is
improper because the inquiry of the Grand Jury has ended. People v. DeLaire,
supra.
4. It has been widely reported, following a leak to the media, that the Special
Prosecutors are now using the Grand Jury to investigate Mr. Bianchi’s handling of
individual criminal prosecutions. (Copies of media stories attached as Exhibit G).
The Special Prosecutors have no lawful authority to use the Grand Jury to
allegedly investigate individual cases prosecuted by the McHenry County State’s
Attorney’s Office. [Foot Note 4]
= = = = =
Foot Note 4 Mr. Tonigan represented to this Court on December 3, 2010 that all petitions and
orders relevant to their authority were tendered to the defense. No order purporting to expand the
authority of the Special Prosecutors to permit them to investigate the handling of specific
criminal cases has been tendered. (See pages 5-6 of the transcript of proceedings on December 3,
2010 attached as Exhibit H)
= = = = =
It is particularly alarming when this unauthorized investigation
makes it way to the news media in an obvious attempt to further diminish the
Defendant’s reputation in the community from which potential jurors will be
selected.
5. Count I of the instant indictment alleges that “the defendants did conspire with
each other and with others known and unknown to the Grand Jury” to commit
official misconduct and obstruction of justice. On December 3, 2010, this Court
ordered the Special Prosecutors to disclose the names of those co-conspirators
known to the Grand Jury to have allegedly entered into this conspiracy with the
Defendants. In response, the Special Prosecutors disclosed the names of Ronald
Salgado, Karen Rhodes, Michael McCleary and Nancy Prioletti. As to all four (4)
individuals, absolutely no evidence was presented to the Grand Jury from which
any reasonable, fair-minded prosecutor could contend that these individuals
participated in the conspiracy charged in Count I of the Indictment. For example,
Nancy Prioletti’s name was mentioned only three times in response to questioning
of witnesses before the Grand Jury which returned this indictment.
(a) Amy Dalby
Q: Who were the members of that committee (campaign)?
A: I remember that Nancy Prioletti didn’t work at the office, but she
was one of his campaign managers.
(Pg. 21 of Dalby transcript attached as Exhibit I)
(b) Karen Rhodes
Q: Other members (of campaign committee)?
10
A: Nancy Prioletti.
Q: And who is Ms. Prioletti?
A: She’s a neighbor of Mr. Bianchi.
Q: And did she have an administrative function with the committee
(campaign) at any time?
A: She’s the chairman
(Pgs. 35-36 of Rhodes transcript attached as Exhibit J)
(c) Joyce Synek
Q: Who were the people on his political campaign committee,
ma’am?
A: I – I know some.
Q: Who are the ones that you know, ma’am?
A: Nancy Prioletti.
Q: And would you spell her last name for the records, please?
A: P, as in Peter, -r-i-o-l-e-t-t-i.
Q: She is not an employee of the County of McHenry, is that correct?
A: Yes
(Pg. 81 of Synek transcript attached as Exhibit K)
In a blatant and reprehensible act, these Special Prosecutors have disclosed to the entire
community that Nancy Prioletti conspired with the Defendants and others to commit criminal
acts based upon testimony before the Grand Jury which established that she was Lou Bianchi’s
neighbor and that she served on his campaign committee.
The request for the Grand Jury colloquy is made in good faith by the defense and will
result in no prejudice to the Special Prosecutors unless the transcripts reveal misconduct on their
part. It is not for the Special Prosecutor to determine what is and is not material to the defense.
Only the defense can possibly make such a determination. The Defendant has made more than
an adequate showing that the transcripts are material to his defense.
Furthermore, the Special Prosecutors fail to present any legitimate reason why the
transcripts should not be disclosed to the defense. Simply arguing “we don’t want to disclose the
transcripts” is not a legitimate argument for the prosecution to make during a criminal
proceedings when his liberty and future is at stake.
The transcripts of the colloquy have been typed and are available for production without
significant effort. If no such misconduct occurred then there has been no harm. If, however,
misrepresentations of the law or other prejudicial acts were committed by the Special Prosecutors
the Defendant will be in a position to assert his due process rights.
Conclusion
As to the first two categories of documents which are requested in the Motion to Compel,
the Special Prosecutors are ignoring their absolute obligation under Supreme Court Rule 412.
The Special Prosecutors must disclose all memorandum containing substantially verbatim reports
of oral statements of witnesses, including handwritten notes. Furthermore, despite the Special
Prosecutors’ representation in their Response, it is simply not true that the transcripts of every
witness who appeared before the Grand Jury was tendered.
As to the third category of material requested in this Motion, the Defendant has
demonstrated that the Grand Jury colloquy is material to his defense and therefore the entire
transcript of the Grand Jury proceedings should be tendered.
Respectfully submitted;
Terry A. Ekl, attorney for Louis A. Bianchi
Terry A. Ekl
Tracy L. Stanker
901 Warrenville Rd.
Suite 175
Lisle, Illinois 60532
(630) 654-1624
ARDC #727105
# posted by Cal Skinner : 8:44 PM
