Tuesday, August 02, 2011

Lou Bianchi's Motion for a Directed Verdict of Acquittal

STATE OF ILLINOIS )
)
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. 11 CF 169
)
LOUIS A. BIANCHI, )
Defendant. )

MEMORANDUM IN SUPPORT OF MOTION FOR DIRECTED FINDING


The charges pending against Defendant, Louis A. Bianchi, are fatally deficient in numerous respects, warranting a directed finding of not guilty. Furthermore, even viewing the evidence in the light most favorable to the State, they have failed to present any sufficient evidence to establish the Defendant’s guilt beyond a reasonable doubt as to any of the charges.
LEGAL ISSUES
Count I alleges that the Defendant committed the offense of Official Misconduct by violating the following “laws”:

Count III alleges that the Defendant committed the offense of Official Misconduct by violating the following “laws”:


A. In Order to Sustain Its Burden the State Must Prove a Violation of the Equal Protection Clause and Every Rule of Professional Conduct Specified in the Indictment
In Count I and III, the State charged Defendant with violating the Equal Protection Clause of the Illinois Constitution, numerous Rules of Professional Conduct, including several subsections of each Rule, and Supreme Court Rule 770. Therefore, based on the manner in which the State charged the offenses, in order to sustain its burden on each Official Misconduct count, the State is required to prove, beyond a reasonable doubt, a violation of every “law” enumerated in the indictment. Therefore, if the State is unable to prove a violation of even one of the “laws” specified in the charge, a finding of not guilty must be entered on that Count.
In the alternative, if the State attempts to argue that they intended to charge each separate violation in the disjunctive and that it is their opinion that they are only required to prove one violation in order to meet their burden, then the indictment is simply void. Initially, the indictment itself does not specify that the State intended to charge each separate “law” in the disjunctive. The only time the State even used the word “or” was between Rule 5.3 and Rule 770 in Count I and between Rule 8.4 and Rule 770 in Count III. However, if the prosecution still asserts that the indictment was pled in the disjunctive, then, under Illinois law, the indictment is void. An indictment is void for duplicity if it charges a defendant in the disjunctive with committing disparate and alternative acts. See People v. Capital New, Inc., 137 Ill.2d 162, 560 N.E.2d 303 (1990) (indictment charging the defendant with having “sold or delivered” an obscene magazine was void as duplicitous); People v. Boyd, 102 Ill. App. 3d 343, 430 N.E.2d 530 (1st Dist. 1981) (complaint was void where it disjunctively charged defendant with gambling by possessing bookmaking paraphernalia or possessing money received in the course of a bet); People v. Abrams, 21 Ill. App. 3d 734, 316 N.E.2d 5 (1st Dist 1974) (indictment charging defendant with acquiring or possessing any firearm or firearm ammunition was void). A void complaint may be challenged at any time. People v. Heard, 47 Ill.2d 501, 505, 266 N.E.2d 340, 343 (1970). In People v. Heard, the Illinois Supreme Court reversed the defendant’s conviction based on the fact that the complaint was charged in the disjunctive. Id.
It is the Defendant’s position that the State must prove, beyond a reasonable doubt, that Defendant violated the equal protection clause and violated each and every rule enumerated in the charge, in order to sustain its burden on each official misconduct charge. If the State takes the position that they charged the violations in the disjunctive and therefore they are only required to prove that one of the “laws” was violated, then both Counts I and III are void and a finding of not guilty should be entered in favor of the Defendant.
B. The Indictment Fails to State an Offense Based on a Violation of the Equal Protection Clause.

Both Counts I and III are legally deficient and fail to state an offense for official misconduct based on the fact that each charge is predicated on a violation of the equal protection clause of the Illinois Constitution. Initially, the co-defendant in this case, Ronald Salgado, was also charged with committing official misconduct by violating the equal protection clause of the Illinois Constitution. The charge against Ronald Salgado was dismissed by this Court on the grounds that the State failed to state an offense predicated on a violation of the equal protection clause. The Court’s well supported holding, which is now the law of the case, stated that:
“I do not find that, consistent with established case law, that felons or those charged with felonies are a protected class. They are frequently and regularly treated inconsistently. There is a variety and immeasurable amount of discretionary subjective assessments in every case.”

“The equal protection clause prevents discrimination by the State based on discrete or insular traits, race or gender, things that are immutable, unchangeable, which could be the basis of discrimination.” (See Ruling, pg 5, attached as Exhibit A).

Just as Ronald Salgado, the Defendant is charged in Count I with violating the equal protection rights of “similarly situated defendants who were not related to Ronald Salgaldo.” Individuals charged with drug offenses, who are “not related to Ronald Salgado,” are not a protected class under the equal protection clause. Likewise, in Count III, the Defendant is charged with violating the equal protection rights of “similarly situated defendants not personally known to Bianchi or financial contributors to his political campaign.” An individual, simply by virtue of being charged with a crime, is not part of a protected class. Furthermore, people “not personally known to Bianchi or financial contributors to his campaign” are not a protected class. In both Counts I and III, the State fails to identify a class of individuals with a discrete or insular trait, which could even be the basis of discrimination under the equal protection clause.
Defendant could not locate a single Illinois or federal case in which a defendant was charged with a crime for allegedly violating the equal protection clause. However, in a civil rights cases, to establish an equal protection claim a plaintiff must show that (1) he is a member of a protected class, (2) he was otherwise similarly situated to members of an unprotected class, and (3) he was treated differently than members of the unprotected class. Salcadori v. Franklin School District, 293 F.3d 989, 997 (7th Cir. 2002). The State fails to allege, in either count, an actual protected class of people that were discriminated against. Instead, the State attempts to claim that defendants that do not know Ronald Salgado, and defendants who are not known to Louis Bianchi, are somehow a protected class of people. This position is completely contrary to well-established Illinois and federal law. There is obviously discretion involved in all prosecutions. To allow defendants to sue prosecutors, or even more ridiculous, to charge prosecutors criminally, because one defendant was given a different sentence than another defendant, is clearly not the purpose of the equal protection clause. An equal protection claim is inappropriate when discretion is involved unless a fundamental right or suspect class is involved because allowing such a challenge “would undermine the very discretion that such state officials are entrusted to exercise. “ Enquist v. Oregon Dept. of Agriculture, 553 U.S. 591, 603 (2008).
Therefore, in Counts I and II, the State fails to state an offense for official misconduct predicated on a violation of the equal protection clause of the Illinois Constitution. Therefore, both Counts I and III should be dismissed and a finding of not guilty entered in favor of Defendant.
C. The Indictment Fails to State an Offense Based Upon a Violation of Any Rule of Professional Conduct or Supreme Court Rule

Both Counts I and III allege that the defendant committed official misconduct under 720 ILCS 5/33-3(b) by committing an act which he knew was “forbidden by law.” Based on the manner in which the State charged Counts I and III, they seem to have taken the absurd position that Rules 3.3, 3.8, 5.3, 8.4 of the Illinois Rules of Professional Conduct and Supreme Court Rule 770 are all “laws.” However, it appears that the State seems to have confused subsection (b) and subsection (c) of the official misconduct statute. Subsection (c) only requires that an individual commit an act “in excess of his lawful authority” if the act was done with the intent to obtain a personal advantage for himself or another. 720 ILCS 5/33-3(c). However, in this case, the Defendant is charged under subsection (b), which eliminates the requirement that the act be done with an intent to obtain personal advantage but requires that the act actually be “forbidden by law.” 720 ILCS 5/33-3(b).
If a prosecutor violates a Rule of Professional Conduct, arguably he could be found to have acted in “excess of his lawful authority” and, if it was done to obtain personal advantage, such conduct could form the basis of an official misconduct charge under subsection (c). However, the Rules of Professional Conduct are not “laws” and a failure to comply with a Rule of Professional Conduct does not automatically mean that an attorney has broken the law. There is not a single Illinois case in which a court held that a prosecutor committed official misconduct under subsection 33-3(b) simply by failing to comply with a Rule of Professional Conduct. In People v. Weber, 133 Ill. App. 3d 686, 479 N.E.2d 382 (5th Dist. 1985), a state’s attorney was charged with official misconduct under subsection 33-3(c) for seeking indictments in order to obtain personal advantage for himself. The court held that a charge under section 33-3(c) can be based upon a violation of a Supreme Court Rule, rule or regulation of an administrative body, or tenant of the Code of Professional Responsibility. Id. at 689. However, that same holding cannot be extended to section 33-3(b), where there is no requirement that the conduct be for personal advantage and therefore the conduct must be expressly “forbidden by law.” As the court in Weber held, “[a]s long as a public official properly performs the duties of his office, it is inappropriate to examine the motives prompting his or her actions unless he or she violates a statue, Supreme Court Rule, administrative rule or regulation or tenet of the Code of Professional Responsibility with the intent to obtain personal advantage for himself or for another.” Id. At 691.1
To hold that any violation of the Rules of Professional Conduct, regardless of the motive or intent behind the violation, is an act “forbidden by law,” would create absurd results. Under that theory, if a prosecutor fails to timely disclose Brady material, has a case dismissed at a preliminary hearing for lack of probable cause, or makes a prejudicial extrajudicial statement about a case, that prosecutor has committed a felony offense, regardless of the prosecutor’s intent. Clearly, the special prosecutors, in light of their own failure to timely disclose Brady material in this case, cannot be suggesting that such conduct, in and of itself, constitutes a crime.
Furthermore, according to the definition of the scope of the Rules of Professional Conduct, the Rules are not intended to impose criminal liability on attorneys. The Supreme Court states that:
“Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.”

“The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.” (See Scope Section of Rules of Professional Conduct, [20], attached as Exhibit B.)
There is nothing contained in the Rules of Professional Conduct that supports an argument that the Rules are equivalent to “laws” or that a violation of a Rule can form the basis of criminal liability. If the Rules cannot be used to impose civil liability, how could they be the basis of criminal liability?
Additionally, the specific Rules that are charged in the indictment clearly cannot be considered “laws” under section 33-3(b) since they do not actually forbid any conduct. Rule 3.8, which was charged in its entirety in both Counts I and III, merely identifies responsibilities of a prosecutor. (See Rule 3.8, attached as Exhibit D). Failing to perform a duty is not equivalent to committing an act “forbidden by law.” Subsection (a) of the official misconduct statute, which the Defendant is not charged with, addresses a situation when a public official fails to perform a duty. Likewise, Rule 5.3, which is charged in Count I, also merely identifies the duties of a lawyer and therefore cannot constitute a law. (See Rule 5.3, attached as Exhibit E). Furthermore, there is absolutely no legal authority to support the position that an attorney can be held criminally responsible for failing to supervise a nonlawyer if that nonlawyer’s conduct is not compatible with the professional obligations of the lawyer. Rule 8.4, which is charged in its entirety in both Counts, also does not forbid any conduct but rather merely defines what constitutes “professional misconduct.” (See Rule 8.4, attached as Exhibit F). Rule 8.4 cannot be considered a “law” given that it does not forbid specific conduct. Counts I and III also allege that the Defendant committed official misconduct by violating Supreme Court Rule 770. However, Rule 770 merely identifies what discipline can be imposed against an attorney who violates the Rules of Professional Conduct. (See Supreme Court Rule 770, attached as Exhibit G). There is absolutely no rational argument to support the position that Rule 770 is actually a “law.”
Furthermore, in order for any of the Rules to constitute “laws” for the purposes of the official misconduct statute, the Rules must satisfy the due process clause which requires that a statute or regulation give a person of “ordinary intelligence a reasonable opportunity to know what is prohibited, so that he or she may act accordingly.” Russell v. Dept. of Natural Resources, 183 Ill.2d 434, 442 (1998). When a defendant is charged with official misconduct predicated on a rule or regulation, due process requires the language of the rule or regulation to “convey with sufficient certainty fair warning and notice of what constitutes prohibited conduct.” People v. Shelby, 298 Ill. App. 3d 605, 612 (4th Dist. 1998). If the rule or regulation fails to provide adequate guidelines, due process is violated, and the law is invalid. Id at 613. Clearly, the rules that Defendant is charged with violating would not satisfy the vagueness doctrine under the due process clause. For example, Rule 8.4 states that it is professional misconduct for an attorney to “engage in conduct that is prejudicial to the administration of justice” and Rule 5.3 states that a lawyer shall make “reasonable efforts” to ensure that a nonlawyer’s conduct is compatible with the “professional obligations” of the lawyer. (See Rule 5.3, attached as Exhibit E; Rule 8.4, attached as Exhibit F). Charging the Defendant with Official Misconduct predicated on these vague rules, that do not clearly define the prohibited conduct, does not satisfy the due process clause.
Based on the fact that Counts I and III cannot be predicated on the Rules of Professional Conduct and the Supreme Court Rule specified in the indictment, Counts I and III both fail to state an offense for official misconduct and should be dismissed and a finding of not guilty entered in favor of Defendant.
INSUFFICIENT EVIDENCE
A. No Evidence of Allegations Pled in Count I
In addition to the obvious legal deficiencies of the indictment, the State has also failed to present sufficient evidence to establish Defendant’s guilt beyond a reasonable doubt. In Count I, the State alleges that the Defendant “knowingly performed acts which he knew were forbidden by law to perform in that he failed to recuse himself.” However, the State presented absolutely no evidence that the Defendant violated any law by failing to recuse himself in the case of People v. Jeremy Reid. In fact, of the six “laws” that the State alleges that the Defendant violated in Count I, none of them are even related to a State’s Attorney’s obligation to recuse himself in certain cases. Therefore, based solely on the State’s failure to present any evidence that the Defendant’s failure to recuse himself was forbidden by law, a finding of not guilty should be entered in favor of Defendant.
Additionally, in Count I, the State also makes the following allegations:
Obviously, if the State failed to present evidence to prove any of these allegations beyond a reasonable doubt, a finding of not guilty should also be entered as to Count I. In fact, the State failed to present evidence to prove any of the allegations plead in Count I. The State presented absolutely no evidence that Jeremy Reid is the nephew of Ronald Salgado. Not only is Jeremy Reid not the nephew of Ronald Salgado, there is no relation, either by blood or otherwise recognized under the law, between Jeremy Reid and Ronald Salgado. Given that there was no evidence presented by the State that Jeremy Reid is the nephew of Ronald Saladgo, there obviously was no evidence that Louis Bianchi knew that Jeremy Reid was the nephew of Ronald Salgado.
Furthermore, despite the allegation in Count I, the State failed to present any evidence that the Defendant “directed an Assistant State’s Attorney to reduce John Doe’s negotiated sentence from five years to four years...” According to Kirk Chrzanowski, the Assistant State’s Attorney who handled the Reid case, over the course of several months, he discussed offering Jeremy Reid a four year sentence or a boot camp sentence with Jeremy Reid’s attorney, the arresting officers, and his supervisor, Phil Hiscock. Mr. Chrzanowski also testified that on August 10, 2010, he told Louis Bianchi and Phil Hiscock, that Chris Harmon, Jeremy Reid’s attorney, wanted a four-year sentence and that Louis Bianchi and Phil Hiscock both agreed to that disposition. There was absolutely no testimony from either Kirk Chrznowski, or any other witness, that Louis Bianchi “directed” Kirk Chrznowski to offer Jeremy Reid four years. Based on the State’s failure to present any evidence as to any of the factual allegations in Count I, a finding of not guilty should be entered in favor of Defendant.
B. No Evidence of Allegations Pled in Count III
The State also failed to present any evidence to prove the allegations plead in Count III. In Count III the State also alleges that the Defendant “performed acts which he knew were forbidden by law to perform in that he failed to recuse himself...” However, the State presented absolutely no evidence that the Defendant violated any law by failing to recuse himself in the case of People v. Thomas Salvi. None of the “laws” that the State alleges Defendant violated even mention a State’s Attorney’s obligation to recuse himself in certain cases. Therefore, based solely on the State’s failure to present any evidence that the Defendant’s failure to recuse himself was forbidden by law, a finding of not guilty should be entered in favor of Defendant.
The State also introduced absolutely no evidence that the Defendant directed any Assistant State’s Attorney to offer a victim an apology in exchange for her dismissing the criminal complaint against Thomas Salvi. To the contrary, Demetri Tsilimigras, the Assistant State’s Attorney who handled the Salvi case, testified that he was the one who told Louis Bianchi what the different alternatives were that he could present to the victim. Mr. Tsilimigras testified that Louis Bianchi told him that if the victim wanted to go to trial that they were going to take the case to trial. Mr. Tsilimigras told the victim the exact same thing. The testimony was uncontradicted that the victim, after hiring an attorney, decided, on her own volition, that she wanted the case against Thomas Salvi dismissed. ASA Tsilimigras clearly testified that Bianchi never directed him to offer the victim an apology in exchange for dismissing the case.
Based on the State’s failure to present any evidence as to the factual allegations in Count III, a finding of not guilty should be entered in favor of Defendant.
C. No Evidence of Any Violation of the Equal Protection Clause under Count I and Count III

The State also failed to present any evidence that Louis Bianchi’s alleged conduct in Counts I and III (which the State presented no evidence) somehow violated the equal protection clause of the Illinois Constitution. As outlined in a proceeding section, the equal protection clause is inapplicable to the allegations in this case and cannot serve as a predicate to either official misconduct charge. Furthermore, even assuming, arguendo, that individuals charged with felonies are a protected class, there was absolutely no evidence presented by the State that other individuals, similarly situated to Jeremy Reid, were in fact treated differently, in violation of the equal protection clause. In fact, to the contrary, Kirk Chrznowski testified that he handled a case similar to the Reid case, People v. Baez, in which he also offered the defendant a sentence of four years on a Class 1 felony.
Likewise, even assuming, arguendo, that defendants who are not “personally known to Bianchi” could somehow be a protected class under the equal protection clause, the State presented absolutely no evidence that any other defendant, similarly situated to Thomas Salvi, who was not personally known to Bianchi, was treated differently than Thomas Salvi, in violation of the equal protection clause.
D. No Evidence of a Violation of Any Rule of Professional Conduct Alleged in Count I and Count III.

Additionally, even if the State had presented evidence to support the allegations made in Counts I and III, those allegations do not constitute violations of the Rules of Professional Conduct specified in each count. The State alleges, in both Counts, that Defendant’s conduct violated Rule 3.3(a)(1), which states:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer. (See Rule 3.3, attached as Exhibit C)
The State failed to present any evidence that Defendant made any statement to a tribunal in connection with Jeremy Reid or Thomas Salvi’s case, let alone a false statement.2
In Count I and III, the State also alleges that the Defendant violated Rule of Professional Conduct 3.8. In both Counts, the State fails to allege that Defendant violated a specific subsection of that Rule and therefore the State must prove a violation of every subsection of the Rule. Regardless, the State failed to present any evidence that Defendant violated any portion of Rule 3.8, which states:
The duty of a public prosecutor is to seek justice not merely convict. The prosecutor in a criminal case shall:
(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;
(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;
(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that pose a serious and imminent threat of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
(See Rule 3.8, attached as Exhibit D).

The State failed to present any evidence, under either Count I or III, that the Defendant violated any of the subsections of Rule 3.8. Specifically, the State presented no evidence that Defendant:
(a) Prosecuted a charge that he knew was not supported by probable cause(Rule3.8(a));
(b) Failed to advise an accused of the right and procedure to obtain an attorney (Rule 3.8(b));
(c) Obtained a waiver of important pretrial rights from an unrepresented accused (Rule 3.8(c));
(d) Failed to disclose Brady material to the defense (Rule 3.8(d));
(e) Subpoenaed a lawyer in a grand jury to present evidence about a client (Rule 3.8(e));
(f) Made extrajudicial comments in a criminal case that prejudices the accused (Rule 3.8(f)).
Simply, Rule 3.8 has absolutely no applicability to the allegations made in Count I or III. The State failed to allege, let alone present evidence, that the Defendant violated any section of Rule 3.8.
The State also alleges, in Count I, that Defendant violated Rule 8.4(a)-(e), and in Count III that Defendant violated Rule 8.4(a)-(d). Therefore, the State must prove a violation of all alleged subsections. However, the State failed to present evidence as to any of those five sections of Rule 8.4 which states:
It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
(c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
(d) engage in conduct that is prejudicial to the administration of justice.
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law. (See Rule 8.4, attached as Exhibit F).

As explained in a proceeding section, Rule 8.4 does not prohibit any specific conduct but rather merely defines “professional misconduct” and therefore cannot be considered a “law” for purposes of the official misconduct statute. Regardless, the State failed to present any evidence that the Defendant violated any of the broad and general principles laid out in Rule 8.4(a)-(e) such as: commit a criminal act; engage in dishonesty, fraud, deceit or misrepresentation; engage in conduct that is prejudicial to the administration of justice; or, imply an ability to influence a government agency.3
In Count I, the State also alleges that the Defendant violated Rule 5.3 by failing to make reasonable efforts to ensure that a nonlawyer’s conduct is compatible with the professional obligations of the lawyer. Initially, as explained in the proceeding sections, under the due process clause, a lawyer cannot be criminally liable for failing to supervise a nonlawyer when that nonlawyer’s conduct is not compatible with the professional obligations of the lawyer. Furthermore, the State failed to present any evidence that Louis Bianchi failed to supervise any nonlawyer or that the nonlawyer engaged in conduct that was not compatible with Louis Bianchi’s professional obligations.
The State also alleges in Counts I and III that Defendant violated Supreme Court Rule 770. Obviously, no evidence could be presented to show a violation of Rule 770 since the Rule does not prohibit any conduct but merely identifies what discipline can be imposed against an attorney. According to Supreme Court Rule 770:
Conduct of attorneys which violates the Rule of Professional Conduct contained in article VIII of these rules or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute shall be grounds for discipline by the court.
Discipline may be:
(a) disbarment;
(b) disbarment on consent;
(c) suspension for a specified period or until further order of court;
(d) suspension for a specified period of time;
(e) suspension until further order of the court;
(f) suspension for a specified period of time or until further order of the court with probation;
(g) censure;
(h) reprimand by the court, the Review Board or a hearing panel. (See Rule 770, attached as Exhibit G).

Clearly, the State did not present any evidence that the Defendant violated Rule 770, given that the Rule 770 does not prohibit any conduct but rather specifies the appropriate discipline for an attorney who violates the Rules.
As stated in the proceeding section, in order to meet its burden as to Counts I and III, the State must prove a violation of the equal protection clause and every Rule alleged in the indictment. A failure to present evidence as to one should result in a directed finding of not guilty in favor of the Defendant. In fact, the State failed to present evidence as to any of the factual allegations made in Counts I and III or to prove any violation of the equal protection clause or any Rule of Professional Conduct.
CONCLUSION
There are numerous legal deficiencies in Counts I and III which warrant a finding of not guilty as to those charges, for that reason alone. Furthermore, even viewing the evidence in the light most favorable to the State, the State has failed to present sufficient evidence to find the Defendant, Louis A. Bianchi, guilty beyond a reasonable doubt.
WHEREFORE, Defendant LOUIS A. BIANCHI respectfully requests that this Honorable Court enter a directed finding of not guilty as to all counts of the indictment.

Respectfully submitted;

Terry A. Ekl
Attorney for Louis A. Bianchi
Terry A. Ekl (ARDC #00727105)
Tracy L. Stanker
Ekl, Williams & Provenzale LLC
901 Warrenville Rd. Suite 175
Lisle, Illinois 60532
(630) 654-0045
1The court in People v. Davis held the indictment should be dismissed for failure to state an offense for official misconduct.
2Additionally, the indictment fails to allege any false statement made by Defendant before a tribunal.
3Furthermore, as fully explained in the proceeding section, Rule 8.4 is not a “law” under the official misconduct statute as it is too vague and does not clearly define what conduct is prohibited, in violation of the due process clause.

# posted by Cal Skinner : 3:01 PM




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