IN THE CIRCUIT COURT FOR THE TWENTY-THIRD JUDICIAL CIRCUIT DEKALB COUNTY, ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, } Plaintiff, 5 2 No. 11 CF 454 v. ) ) ar JACK D. MeCULLOUGH, 5 ‘The Hon, William P. Brady 2 Defendant, ) ) NOTICE OF MOTION TO: See Attached Certificate of Service. PLEASE TAKE NOTICE THAT on the 21st day of June, 2016 at 1 .m., Or as soon thereafter as counsel may be heard, I shall appear before the Honorable William F. Brady, or any judge sitting in his stead in Room 300 of the DeKalb County Courthouse, 133 West State Street, Sycamore, Illinois, and shall then and there present MOTION FOR LEAVE TO FILE AMICUS BRIEF, INSTANTER, AND STATEMENT OF INTEREST, a truc and correct copy of which is attached hereto and served upon you. Dated: June 17, 2016 Respectfully submitted, ‘THE RODERICK MACARTHUR JUSTICE CENTER ow may f One of lis Ai tlomeysThe Roderick MacArthur Justice Center Locke E. Bowman, Legal Director 357 E. Chicago Ave. Chicago, IL 60611 (312) 503-0844 James I. Kaplan ‘Thomas J. McDonell Quarles & Brady LLP 300 N. La Salle St., Ste. 4000 Chicago, IL 60654 (312) 715-5000CERTIFICATE OF SERVICE ‘Thomas J. McDonell, an attomey of record, certifies that he served the foregoing Notice of Motion and Motion for Leave to File Amicus Brief, Instanter, and Statement of Interest referenced therein upon Gabriel A. Fuentes Jenner & Block LLP 353 North Clark Street Chicago, IL 60654-3456 -gfuentes@jenner.com Richard H. Schmack State’s Attorney DeKalb County 133 West State Street Sycamore, IL 60178 rschmack/@dekalbeounty.org Bruce Brandwein Brandwin & Smolin 20 South Clark Street, Suite 410 Chicago, IL 60603 bmacebrandwein@yahoo.com by e-mail and First Class Mail by causing true and correct copies of same to be placed in properly addressed, postage prepaid envelopes and deposited into a United States mail depository located at 300 North LaSalle Street, Chicago, Ilinois 60654, on or before 5:00 pm, on this 17th day of June, 2016. ‘BW0331087.1 Thomas J. McDonell 7IN THE CIRCUIT COURT FOR THE TWENTY-THIRD JUDICIAL CIRCUIT. DEKALB COUNTY, ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, ) ) Plaintiff, ) ) No. 11 CF 454 7 ) ) all JACK D. MeCULLOUGH, ) ‘The Hon. William P. Brady ) Defendant. ) ) MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF INSTANTER AND. STATEMENT OF INTEREST ‘The Roderick MacArthur Justice Center (the “MacArthur Justice Center”), through its attorneys Quarles & Brady LLP, hereby requests this Court for leave to file an amicus curiae brief instanter. In support, the MacArthur Justice Center states as follows: 1. Amicus briefs may be filed by leave of the court pursuant to Ilinois Supreme Court Rule 345. This rule provides that a motion for leave “shall state the interest of the applicant and explain how an amicus brief will assist the court.” Ill. Sup. Ct. R. 345. 2. Here, the MacArthur Justice Center offers a unique and valuable perspective on the issues presented by Charles Ridulph's Second Amended Motion for Appointment of a Special Prosecutor 3. The family of J. Roderick MacArthur founded the center in 1985 to advocate for human rights and social justice through litigation. Today, the MacArthur Justice Center is one of ind the premier civil rights law firms in the United States with offices in Chicago, New Orleans, Oxford. Mississippi. The Center has become a national champion of criminal justice reforms, including police misconduct, death penalty, parole revocations. prison conditions, and rights of detainees,4. The MacArthur Justice Center is uniquely positioned to comment on the applicability of the special prosecutor statute, 55 ILCS 5/3-9008, in this instance because of its involvement in the matter of David Koschman, a well-known, recent, and leading case in which a special prosecutor was indeed appointed. There, the MacArthur Justice Center represented David Koschman’s mother in her petition for the appointment of a special prosecutor because of an actual conflict of interest. Chicago attomey Dan K. Webb was appointed and served in that capacity. MacArthur attomeys are intimately familiar with the arguments made in Koschman for appointment of a special prosecutor and with the unusual circumstances that led to the appointment of a special prosecutor in that matter. 5. The Koschman case is entirely distinguishable from the present case. When MacArthur Center attomeys learned that the Koschman matter was being cited as precedent in support of the appointment of a special prosecutor, we concluded that it could be appropriate and helpful to the court for the Center to formally submit its views conceming the propriety of appointment of a special prosecutor here. 6. For these reasons, the MacArthur Justice Center requests that the Court grant its motion for leave to file an amicus curiae brief instanter, and consider the attached amicus brief in deciding whether the appointment of a special prosecutor is appropriate in this instance. Dated: June 17, 2016 Respectfully submitted, THE RODERICK MACARTHUR JUSTICE CENTER. » Md One of is AttorneysMacArthur Justice Center Locke E. Bowman, Legal Director 357 E. Chicago Ave. Chicago, 1L 60611 612) 503-0844 James |. Kaplan ‘Thomas J. McDonell Quarles & Brady LLP 300 N. La Salle St,, Ste. 4000 Chicago, IL 60654 312) 715-5000 9810331134.1IN THE CIRCUIT COURT FOR THE TWENTY-THIRD JUDICIAL CIRCUIT. DEKALB COUNTY, ILLINOIS PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, No. 11 CF 454 v. JACK D. McCULLOUGH, ioe len oan ) ) ) ) ) ) ) ) Defendant. } MEMORANDUM OF LAW BY AMICUS CURIAE RODERICK MACARTHUR JUSTICE CENTER IN OPPOSITION TO CHARLES RIDULPH’S SECOND AMENDED MOTION FOR APPOINTMENT OF SPECIAL PROSECUTOR This is not @ case where Ilinois law permits the appointment of a special prosecutor under 55 ILCS 5/3-9008. The DeKalb County State’s Attomey (the “State's Attorney”) does not have an actual conflict of interest—including a personal, financial, or political interest—that would prevent the State’s Attorney from making an impartial decision regarding the innocence of Jack D. McCullough. The MacArthur Justice Center is uniquely positioned to comment on the applicability of 55 ILCS 5/3-9008 in this instance because of its involvement in the matter of David Koschman, a well-known, recent, and leading case in which a special prosecutor was indeed appointed. There, the MacArthur Justice Center successfully represented David Koschman’s mother in her petition for the appointment of a special prosecutor because of an actual conflict of interest. As set forth more fully below, the Koschman matter is very distinguishable from Mr. Ridulph’s motion, which has failed to allege specific facts establishing true prosecutorial conflict, and therefore Mr. Ridulph’s motion must be denied. BACKGROUND On March 24, 2016, the State’s Attorney joined Mr. McCullough’s December 2015 post- conviction petition, stating that the State of Illinois was “ethically compelled and constrained to admit the existence of clear and convincing evidence showing [McCullough] to have beenconvicted of an offense which he did not commit.” ‘The State reiterated that conclusion in a responsive pleading it filed on April 12, 2016. The Court is familiar with the facts of this case, having made detailed, on-the-record findings on April 15, 2016 in support of its decision granting Mr. McCullough’s petitions under Sections 2-1401 and 5-122. The Court ruled that Mr. McCullough had met his burden in that the State had agreed to three specific allegations that cumulatively supported vacating Mr. McCullough’s conviction. ‘The Court made its findings, and ordered the release of Mr. McCullough, while Mr. Ridulph’s initial motion for appointment of a special prosecutor was pending. On April 21, 2016, Mr. Ridulph, through counsel, filed his Amended Motion to Appoint Special Prosecutor. The thrust of Mr. Ridulph’s Amended Motion was a collection of petition signatures submitted on behalf of members of the community, with the Mayor of Sycamore being the first signer. Mr. Riduiph then filed a Second Amended Motion for Special Prosecutor, on May 17, 2016. In this iteration, which is the matter currently before the Court, Mr. Ridulph alleged that: + During Mr. McCullough’s trial in 2012, the State’s Attorney (who was then a candidate for the State’s Attorney position) was seen to “approach and speak with the Defendant's attorneys.” * The State’s Attorney at that time was heard to “state that if he is elected as State’s Attomey he would dismiss the murder charges as Mr. McCullough is innocent and ‘this, is ridiculous, the FBI cleared him in 1957.” * The State’s Attomey posted on his Facebook page an unspecified “article . . . indicating that Mr. McCullough is innocent and that this prosecution was politically motivated.” Second Amended Mot. at 2. The Second Amended Motion contained further allegations from Mr. Ridulph, concerning meetings between him and the State's Attomey after the 2012 election. The Ridulph allegations essentially are that the State's Attorney told him in 2014 that “he was not familiar with the file but if the case were ever returned to him he would not retry it and that the original trial was full of errors.” and that in 2015 the State’s Attorney and Mr. Ridulph had a diabout the evidence ~ including the Rockford phone call — which with Mr. Ridulph disagreed. Second Amended Mot. at 2-3. The motion then alleged that the State’s Attorney had a “predisposed mindset” that “created a conflict of interest” between “his duty as State’s Attorney” and “his campaign promise not to go forward with this case.” Id. at 3. ARGUMENT For the reasons set forth below, Mr. Ridulph’s motion fails to set forth any ground to appoint a special prosecutor in this matter and demonstrates why this is an improper case for appointment of a special prosecutor. Even Accepting Mr. Ridulph’s Allegations as True, the State’s Attorney Does Not Have an Actual Conflict of Interest Under 55 ILCS 5/3-9008, Section 3-9008 targets a prosecutor's actual conflict of interest—be it personal, financial, or political—not a prosecutor's opinions. The statute allows a “court on its own motion, or an interested person in a cause or proceeding, civil or criminal,” to file “a petition alleging that the State’s Attorney is sick, absent, or unable to fulfill his or her duties” or “has an actual conflict of interest in the cause or proceeding.” 55 ILCS 5/3-9008 (emphasis added). A prosecutor is “interested” for purposes of the statute if he is interested as a private individual, or if his office is @ party to the action. Baxter v. Peterlin, 156 Ill. App. 3d 564, 566 (34 Dist. 1987). Vague allegations of the prosecutor’s political motives for an action, such as whether his or her decision arose from some “political alliance” wit a party or a party’s political allies, are insufficient to invoke Section 3-9008. id. at 566-67. Mr. Ridulph has alleged that the State’s Attomey, before he was elected, was overheard by Ms. Julie Trevarthen, a former Assistant State’s Attorney, to say he would not let Mr. MeCullough’s conviction stand, Even if such an allegation were true. and even if such an alleged statement were indeed a “campaign promise.” the allegation would still be even more speculative and conclusory than the one rejected as a basis for a special prosecutor appointmentin Baxter. There, the petitioner claimed that the prosecutor declined to prosecute a person who was politically allied with a local mayor, with whom the prosecutor was alleged to have had political ties. Id, at $67. The Baxter court required the petitioner to plead and provide “specific facts regarding the nature of the alliance as well as facts tending to show the State’s Attorney would not zealously represent the People of the State of Illinois because of this alliance.” Id. at 566. While these facts were present in the Koschman case, they are not present here. Mr. McCullough is certainly not “politically aligned” with anyone of great influence in DeKalb County who would make the State’s Attomey think twice about prosecuting him (and Mr. ‘Ridulph has not alleged as such). The truth is very likely the opposite. In fact, Mr. Ridulph goes through great pains to point out that Mr. MeCullough is one of the most reviled persons in all of DeKalb County. Additionally, the State's Attomey’s continued participation in the matter of Mr. McCullough would not create the “appearance of impropriety.” Second Amended Mot. at 4. We note that the cases Mr. Ridulph relies on for this line of argument (specifically, People v. Lang, 346. Ill. App. 3d 677 (2d Dist. 2004) and People v. Bickerstaff, 403 Ill. App. 3d 347 (2d Dist. 2010)) deal with the “appearance that the defendant is being unfairly prosecuted.” Lang, 346 Il. App. 3d at 682 (emphasis added). More importantly, however, Lang is distinguishable and Bickerstaff actually supports Mr. McCullough’s position. In Lang, the Court held that a special Prosecutor should have been appointed because an Assistant State’s Attomey, who followed a defendant with a revoked driver's license to the courthouse parking lot and watched him drive away, created the appearance that the State’s Attomey’s office “was obsessed with finding evidence against the defendant to obtain a conviction against him at all costs.” /d. at 684. In Bickerstaff, the prosecutor made extrajudicial statements when he was a candidate for State’s Atlomey about how his predecessor had carelessly applied for a search warrant in thedefendant’s sex offender's case, Bickerstaff, 403 Ill. App. 3d at 351. Nonetheless. the Court held that appointment of a special prosecutor was nol warranted because “[the State's Attomey’s} conduct was directed entirely at criticizing his predecessor, and there is no evidence, or argument, that [the State’s Attorney] personally instigated the case or entangled himself in it to fan extent that exceeded his role as a prosecutor.” /d, at 354. ‘The MacArthur Justice Center has not identified a single case in whieh any Illinois court has held that because a prosecutor offered an opinion or comment to the effect that a defendant ‘Was innocent, or that a prosecution was not well-founded, the public’s confidence in the integrity of the justice system needed to be restored by appointing a special prosecutor. Il, Appointment of a Special Prosecutor in the David Koschman Matter Does Not Support Appointment of a Special Prosecutor Here. In both the Amended and Second Amended motions, Mr. Ridulph has cited to Tudge Toomin’s decision granting a request to appoint a special prosecutor in the David Koschman matter. The Roderick MacArthur Justice Center made that request on behalf of David’s next-of- kin, his mother, Nanci. But nothing about the Koschman case supports appointment of a special prosecutor here Mr. Koschman died from injuries sustained in a physical altercation with the nephew of then-Chicago Mayor Richard M. Daley. After investigating the incident, the Cook County State's Attomey’s Office concluded that there was insufficient evidence to warrant the filing of charges in connection with his death, The State's Attorney's Office as well as Chicago’s Office of the Inspector General opened investigations into how the police and the State’s Attorney handled the case. and the Chicago Sun-Times published several articles on this topic. Nanci Koschman later filed a petition seeking the appointment of a special prosecutor to conduct an independent investigation of whether criminal charges should have been brought against any person in connection with Mr. Koschman’s death. The court granted the petition. It based itsdecision on (1) the fact that an employee of the State’s Attorney's Office was both a key witness in the investigation into how law enforcement handled the case and a potential subject of an inquiry into whether obstruction of justice and official misconduct was committed in the course of that investigation, and (2) the appearance of impropriety that would result if the State’s Attomey’s Office were permitted to lead the investigation under the circumstances described in (). See In re Appointment of Special Prosecutor, No. 2011 Mise. 46, at *17-*21, *23-*32 (Cook County Dept. 2012). Judge Toomin’s conclusion was consistent with the cases in which Illinois courts have found appointment of a special prosecutor appropriate based on actual conflicts of interest by the Prosecutor: the Cook County State’s Attomey’s Office had an actual conflict in the Koschman case. And, of course, then-Chicago mayor Richard M. Daley was unquestionably the most powerful political figure in all of Cook County, and a family member (his nephew) was the potential defendant in the case, But nothing about Mr. Ridulph’s request for a special prosecutor is like the Koschman case, Here, no allegation suggests that the State's Attomey would be a witness in any re-prosecution of this matter, that his conduct would fall within the scope of any further investigation or prosecution of Mr. McCullough, or that he could be perceived as reluctant to prosecute Mr. McCullough because of Mr. McCullough's personal or family connections to powerful political leaders. HL. A Prosecutor’s Discretion is Essential to the Exercise of Justice; the State’s Attorney’s Client is not the Vietim, it is the “People,” or Society as a Whole. Mr. Ridulph disagrees with the State’s Attorney’s conclusion that Mr McCullough is innocent and should not still be prosecuted for murder in the Maria Ridulph case. However, Tequests grounded in the petitioner's disagreement with the prosecutor's exercise of discretion should nor be granted, If the situation were otherwise, any interested person with a different view from the prosecution as to the facts or legal conclusions of a given case. or arty person whodiffered with the polities of a prosecutor or with his “campaign promise[s].” could run to a court, claim bias or political motive, and have that court strip the prosecutor of all authority over a case. To the degree that Mr. Ridulph purports to allege that the State's Attorney here would not zealously represent the People of the State of Illinois, that conclusion is based entirely on Mr. Ridulph’s assumption that the prosecutor cannot represent the State’s interest zealously unless he agrees with Mr. Ridulph that Mr. McCullough should be prosecuted. Zealous and proper representation of the State includes vindicating innocence where the prosecutor finds Of course we sympathize with the enormous personal tragedy Mr. Ridulph has endured, But Mr, Ridulph is not the prosecutor’s client. Berger v. United States, 295 US. 78, 88 (1935) (“{a prosecutor's] interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done....it is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”); see ABA Standards for Criminal Justice Standard 3-3.2 emt. (1993) (“the prosecutor's elient is Rot the victim but the people who live in the prosecutor's jurisdiction”); Carol A. Corrigan, On Prosecutorial Ethics, 13 Hastings Const. L.Q. 537, 537 (1986) (“The prosecutor does not represent the victim of a crime, the police, or any individual. Instead, the prosecutor represents society as a whole.”). It also appears the State’s Attorney has received additional scrutiny because he concluded that Mr. MeCullough was innocent, rather than guilty. We invite the Court to hypothesize the Feverse situation, where the State’s Attomey formed an opinion that Mr. McCullough was guilty or made a “campaign promise” to uphold his conviction. In that scenario. the State's Attorney would have vigorously objected to Mr. McCullough’s motion to vacate his conviction, and sought to try Mr. MeCullough for murder. Few would have questioned the State’s Attorney's ability to proceed in the case because he would been in line with the opinion of the formerState’s Attorney. who obtained a conviction. This in fact is the usual situation in cases of post- conviction reversals. But, under the facts in the present case, because the current State’s Attorney has reached a different conclusion than the prior State’s Attorney (namely, that Mr, McCullough is innocent), itis argued that a special prosecutor is necessary. Not so—this is precisely how the special prosecutor statue ought no/ to be used. Prosecutors should be allowed to vindicate a defendant's innocence when there is ample evidence to support it, just as they should be permitted to retry a defendant after a post-conviction reversal, if the prosecutor still believes in good faith in the defendant’s guilt IV. Appointing a Special Prosecutor Under These Circumstances Would Violate Separation of Powers Principles. As this Court has noted in this case, “the discretion endowed on 2 State’s Attomey in evaluating cases to determine if they should be prosecuted is almost absolute... . All courts, including this one, do not have that same type of discretion, nor should we.” 4/15/16 Tr. at 65. ‘The Court was correct when it said it does not possess such discretion. In In re Harris, for example, a woman petitioned for the appointment of a special prosecutor, alleging that a police detective had fabricated evidence to implicate a 7-year-old and an 8-year-old in the murder of an 11-year-old boy. The petition further alleged that the brother of that police detective was the supervisor of the Organized Crime Division of the Cook County State’s Attorney's office, and therefore an actual conflict of interest existed in the investigation of that police officer for criminal misconduct. But even with those facts, the Ilinois Appellate Court denied the motion to appoint a special prosecutor and explained the importance of the separation of powers principle: “Disqualification of a duly elected State's Attorney must not be taken lightly. for in essence such action disenfranchises the very electorate who in its wisdom has selected that person for public office. The Office of the State's Attomey is an office of constitutional dimension reposing in the executive branch of government, co-equal to the legislature as well as the judiciary. Although the legislature has empowered judges to effect the removal of the State's Attorney in certain limited situations, respect for the doctrine of separation of powers militatesagainst the exercise of such power unless clearly warranted. Petitioner{ } has failed to provide such a basis here.” In re Harris, 335 Ill. App. 3d 517, 525 (Ist Dist. 2002). In the present case, there ig not even an allegation that the State’s Attorney was involved in the previous prosecution or had a personal conflict that would prevent him from fairly presiding over the case. The request for a special prosecutor in this case, having alleged far less than what is required to trigger the Court's discretion to appoint one under Section 3-9008, “would open the door to requiring a special prosecutor be appointed any time a public official of whatever rank is suspected of wrongdoing.” Baxter v. Peterlin, 156 Ill. App. 32d 564, 566 (3d Dist. 1987); see also McCall v. Devine, 334 Ill. App. 3d 192, 194-95 (Ist Dist. 2002) (rejecting special prosecutor Tequest where the attempt to allege a conflict was rooted in the supposed relationship of ““cordiality, compatibility, support, [and] fidelity” between the prosecutor's office and the police.). Moreover, it would open the door to abuses of the special prosecutor statute by making special prosecutors available whenever someone disagrees with a prosecutor's judgment, either to bring a prosecution against a person that a segment of the community believes is innocent, or, as here, perhaps to not pursue a prosecution against a person a segment of the community believes is guilty. It would subject prosecutorial charging decisions to the whim of prevailing opinion, and out of the hands of the elected prosecutor whose position carries with it accountability for those charging decisions. Particularly on the facts of this case, where a Prosecutor was elected with public knowledge of his views of the case, an appointment of a special prosecutor not only undermines the structure of our system of government, but the critical choices made by the voters with respect to our elected officials. CONCLUSION The Roderick MacArthur Justice Center submits that for the foregoing reasons. the Court should deny Mr, Ridulph's request to appoint a special prosecutor in this case.The Roderick MacArthur Justice Center Bowman, Executive Director Locke 357 E. Chicago Ave, Chicago, IL 60611 (312) 503-0844 James I. Kaplan ‘Thomas J. McDonell Quarles & Brady LLP 300 N La Salle St., Ste. 4000 Chicago, 1 60654 (312) 715-5000 QB wo321544,1 By: Respectfully submitted, THE RODERICK MACARTHUR JUSTICE CENTER. ToAbbL One of Its Attomeys -10-