Lawyers: McHenry prosecutor case in trouble as 2nd trial nears

Charges against co-defendants already dropped

As McHenry County's top prosecutor goes on trial a second time Monday, legal observers say the case against him could be in trouble.

State's Attorney Louis Bianchi is accused of giving more lenient deals to criminal defendants who had personal or political ties to his office.

But in recent months, the judge has dismissed charges against both of Bianchi's co-defendants, ruling that the same act Bianchi is accused of committing was not a crime. Winnebago County Circuit Court Judge Joseph McGraw also has denied prosecutors' requests to withdraw from the case.

And McGraw is the same judge who acquitted Bianchi at his earlier trial this year — before his attorneys even presented their case — of separate charges that he used county resources to do campaign work.

"This case appears to be even weaker than the previous case," former prosecutor Michael Ficaro said. "It's a stretch."

If convicted in this second bench trial, Bianchi, 68, would have to forfeit his office and could face up to five years in prison and up to $75,000 in fines. He's accused of official misconduct in failing to recuse himself from cases in which he had alleged conflicts of interest.

In one case, prosecutors assert Bianchi improperly handled a misdemeanor disorderly conduct case against a man accused of making a lewd comment to a woman. Prosecutors say Bianchi directed an assistant to encourage the victim to drop the charges if the man apologized and got counseling.

Prosecutors said the man, his family members and attorney had contributed to Bianchi's campaign fund.

Another case involved a defendant prosecutors described as a nephew of the state's attorney's chief investigator, Ron Salgado. The defendant was charged in 2009 with dealing morphine and cocaine at a Crystal Lake High School and eventually entered a guilty plea. Bianchi allegedly directed an assistant to reduce the defendant's negotiated sentence from five years to four.

Lastly, Bianchi is accused of directing an attorney to delay a case until a defendant prosecutors say Bianchi identified as his nephew could avoid a criminal conviction for theft by getting into a new first offender program.

Defense attorneys insist neither of the alleged relatives were nephews. Defense attorney Terry Ekl has called the charges "garbage," saying there were no conflicts of interest involved and noting that prosecutors negotiate cases every day.

The case against Bianchi is unusual not only because criminal prosecutions of state's attorneys are rare, legal experts said. The only prominent precedent that some experts could recall was Cook County State's Attorney Edward Hanrahan, who in 1971 was charged with conspiracy in a fatal raid on the Black Panthers but later acquitted.

Beyond that, lawyers said, the allegation that Bianchi violated the equal protection rights of the Illinois Constitution by showing favoritism to certain defendants is unusual, and perhaps unprecedented. Equal protection typically applies to a specifically protected class, to keep a prosecutor from discriminating based on race or gender, for instance.

The judge threw out a similar charge against Salgado, ruling that felons are not protected by the law, but prosecutors have argued that accused defendants should be.

If questions remain about how Bianchi settled cases, "the remedy should be the ballot box, not the jury box," said Ficaro, a former assistant attorney general turned defense attorney.

Bianchi is also accused of violating the Illinois Supreme Court Rules of Professional Conduct, though Chicago-Kent College of Law Professor Richard Kling said such ethical violations are typically handled by the Attorney Registration and Disciplinary Commission, which is monitoring the case.

In the Bianchi case, special prosecutors Henry "Skip" Tonigan, a retired judge, and Thomas McQueen, a former federal prosecutor, were appointed to avoid a conflict of interest. They declined to comment for this story.

One legacy of the case could be a proposed law pending in Springfield to have such cases handled by other public prosecutors rather than private prosecutors, as a cost-saving measure, and to require a judge to notify a county before expanding a special prosecutor's powers.

As of last November, prosecutors had billed the county for about $310,000 for the Bianchi cases, but that doesn't include costs for his first trial or preparation for his second. The county is appealing the fees in court. If acquitted, Bianchi will decide whether to run for office again next year and whether to seek payment from the county for his legal defense costs.

By Robert McCoppin, Tribune reporter

Source: Chicago Tribune