Chicago judge weighs appointing special prosecutor to investigate ICE

CHICAGO (CN) — A group of attorneys on Friday stressed to a Chicago judge that Cook County State’s Attorney Eileen O’Neill Burke was shirking her duties by failing to investigate ICE agents for possible crimes committed during Operation Midway Blitz in the city.

Attorneys from Chicago-based firm Loevy & Loevy filed a petition to appoint a special prosecutor in March after what they described as repeated inaction by Burke. The petition is backed by more than 400 signatories, including elected officials, community organizations, activists, religious leaders and journalists.

Meg Gould, an attorney on behalf of the coalition, cited federal immigration authority’s fatal shooting of Silverio Villegas Gonzalez, as well as the nonfatal shooting of Marimar Martinez, while arguing before Judge Erica Reddick in favor of the petition. Typically, a special prosecutor is appointed if there is a conflict of interest between a prosecutor and a would-be defendant.

“Sometimes there can be expressed conflict interests like political alliances, where a prosecutor has a bias or has incentives either to prosecute or not to vigorously prosecute individuals,” said Craig Futterman, founder and director of the University of Chicago’s Civil Rights & Police Accountability Project. He said the conflicts “can be personal and can be institutional.”

Futterman noted that there are currently dramatic disincentives to prosecute federal agents “based on not just explicit threats, but actually actions by the federal administration to retaliate against local officials and others who have used their powers to investigate and prosecute their agents.”

Yvette Loizon, an assistant state’s attorney, argued that fear of political retaliation doesn’t amount to an actual conflict of interest. She pointed to a 2017 Illinois Supreme Court case, People v. Ringland, which she said makes it clear that the Illinois Supreme Court does not want prosecutors to be primary investigators in any case.

“The Cook County State’s Attorney’s office — and I dare say I’ll speak for the police — we do not scour the internet, we do not scour newspaper articles, we do not scour civil deposition testimony to find crimes that we can investigate and prosecute,” Loizon said.

Petitioners reiterated in a prehearing filing that there is a clear conflict of interest that has prevented Burke from taking action against the federal government.

In particular, they noted an email from the state’s attorney’s office in response to whether she’d sign a letter critiquing the Trump administration’s immigration crackdown. Around that same time, President Donald Trump had threatened to deploy the National Guard to Chicago. He was rebuffed by U.S. District Judge April Perry, a Joe Biden appointee, and eventually the U.S. Supreme Court.

“We obviously share concerns about Trump’s actions, rhetoric, and bluster,” Matt McGrath, a spokesperson for the state’s attorney’s office, wrote in an email initially obtained by the Chicago Sun-Times. “At the same time, the state’s attorney’s top priority remains combating illegal guns, and to continue doing that effectively, we need to maintain our excellent working relationships with the local ATF and other federal partners. So, we will not be able to sign on.”

A few recent cases in Chicago have necessitated a special prosecutor.

One notable example is the prosecution of former Chicago Police Officer Jason Van Dyke for the murder of 17-year-old Laquan McDonald. Gould mentioned the McDonald case during her arguments. She noted that action was only taken after the dashcam footage was made public.

Futterman said McDonald case was a good example of how conflict can be shown not just by what a prosecutor says, but by what they do. He noted how there was a long period of inaction after McDonald’s murder despite powerful evidence that a murder was committed.

“One of the things that the court found, even though the state’s attorney then [did] initiate a prosecution of that, [was] that [a] long delay and failure to act was evidence that there was a conflict, and that that state’s attorney could not be trusted to vigorously or rigorously do the job in that case,” he said.

Joseph McMahon, the appointed special prosecutor in the Laquan McDonald case, maintained that it’s a high hurdle to prove that a state’s attorney has a conflict of interest. And that’s a good thing, he said.

“The people of Cook County elected state’s attorney Burke to be their state’s attorney,” he said. “For someone to come in and disenfranchise the voters who who have selected State’s Attorney Burke to make those prosecutorial decisions, it should be a high burden.”

McMahon said that even if a state’s attorney did have strong feelings about a particular case, that still wouldn’t pass muster for that high bar.

“This has to do with the investigation of agents from ICE,” he said. “The petitioners who want the special state attorney have to show that she has, you know — and I keep kind of repeating myself — an interest in the outcome. Not just that she has strong feelings about it, but that she has some personal stake in the outcome of these person prosecutions, and that will be very difficult to do.”

Judge Reddick did not rule on the matter Friday but indicated she will consider the arguments and issue a ruling by May 11.

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