IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CRIMINAL DIVISION

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff,

) ) )
)

08 CR 10502

v.
ANNABEL K. MELONGO, Defendant.

) ) ) ) )

Hon. Dennis J. Porter, Judge Presiding

ORDER ON DEFENDANT'S MOTION TO APPOINT A SPECIAL PROSECUTOR

Defendant, Annabel Melongo, moves this Comi to appoint a special prosecutor in the above captioned case. On July 10, 2013, Defendant filed a Section 1983 suit in the District Comi for the Northern District of Illinois, case No . 13-cv-04924. She has named as defendants, inter alia, Robert Podlasek-the prosecutor in this pending felony case-and the Cook County State's Attorney, Anita Alvarez. Defendant argues that Alvarez and Podlasek are "interested" in this litigation primarily due the aforementioned federal suit. Defendant argues that such

"interest" requires the appointment of a special prosecutor under 55 ILCS 5/3-9008. The appointment of a special prosecutor is not mandatory; the statute openly indicates that such an appointment "may" be made. See 55 ILCS 5/3-9008 (West 2013) . Previous

decisions in this jurisdiction have determined that Section 3-9008 permits this Court to exercise its discretion in reviewing the circumstances to determine the need for such action . See Sommer v. Goetze , 102 Ill. App. 3d 117 (3d Dist. 1981 ). The purpose of the statute is to "prevent any influence upon the discharge of the duties of the State's Attorney by reason of personal interest." People v. Morley, 287 Ill. App. 3d 499, 503-04 (2d Dist. 1997).

In the present case, Defendant argues that this Court ' s decision must be based upon the word "interested" as used in Section 3-9008. Therefore a closer look at what constitutes "interest" is required. A prosecutor will be deemed "interested" under 55 ILCS 5/3-9008 (2008) in three situations: (1) where the attorney is interested as a private individual in the litigation; (2) where the attorney is an actual pmiy to the litigation; and (3) where the attorney's continued participation would create the appearance of impropriety in the prosecution of a defendant. The common law test for "interest" is whether the State' s Attorney is likely to be called as a witness or is a victim of[the] crime. See People v. Lynn, 89 Ill. App. 3d 712 (2d Dist. 1980); McDonald
v. County Bd. , 146 Ill. App. 3d 1051 (2d Dist. 1986); Baxter v. Peterlin, 156 Ill. App . 3d 564 (3d

Dist. 1987); People v. Davidson, 160 Ill. App . 3d 99 (5th Dist. 1987), appeal dismissed, 487 U.S. 1212 ( 1988). Defendant fails entirely to meet these criteria. I. Relationship with Spizzirri

Defendant argues that the Cook County State' s Attorney in 2008 when her indictment was filed, Mr. Richard Devine, had a disqualifying personal interest in this case based on his relationship to Carol Spizzirri. Defendant worked for Carol Spizzirri and the scandal plagued charity, "Save a Life Foundation". In brief, her indictment on these charges stems from her conduct while working at the Foundation. In support of her assertion that a strong personal relationship exists between Devine and Spizzirri, Defendant claims that the two public figures use first names in lieu of formal titles. With her motion she has attached a letter from Spizzirri to Devine wherein Spizzirri signs off on the letter, " Your friend". Further, Defendant played a video in court in which Anita Alvarez discussed the "Cyber Crimes" project. Defendant believes that Alvarez was discussing the facts of this case in order to bolster her public image with regards to her new project. She argues, therefore, that her

prosecution is merely for publicity based on the relationships between these politicians and public figures. She claims this is evidence of an improper relationship affecting the discharge of the State' s Attorney ' s duties. These assertions of emotional and political ties and personal relationships which improperly influenced State ' s Attorney Devine and continue to impact State's Attorney Alvarez are merely conclusory allegations . Defendant has entirely failed to produce any evidence of the alleged relationship extending beyond mere public interactions of a friendly nature. Moreover, her argument that her prosecution is somehow benefiting these public figures requires
v~st

leaps

of imagination and a certain level of unwarranted paranoia. There are no facts that demonstrate any personal interest due to a relationship with Carol Spizzirri for either State's Attorney Devine or State's Attorney Alvarez. The burden in this proceeding rests with Defendant. See People v. Arrington, 287 Ill. App. 3d 1, 4 (2d Dist. 1998). She is required to plead and prove specific facts regarding the nature of the alleged conflict. See Baxter v. Peterlin , 156 Ill. App. 3d 564, 566-567 (3d Dist. 1987). Defendant has entirely failed to meet her evidentiary burden with regards to the personal relationships of former State's Attorney Devine, State' s Attorney Alvarez and Carol Spizzirri as a basis for recusal of the Cook County State' s Attorney' s Office. Therefore, this argument fails. II . Federal Civil Suit

Next, Defendant argues that her civil suit in federal court, which names State's Attorney Alvarez and assistant state's attorney Podlasek as a defendants demonstrates a per se conflict in prosecuting this case because they are parties to the federal civil litigation. In support she cites the case People v. White , 365 Ill. 499 (1937), which stands for the proposition that an ASA has a

conflict where he represents interests in a civil matter that is linked to the criminal prosecution through a similar factual nexus. White does not lay out the applicable law in this case. This Court agrees with the State that White is inapposite. In White, the ASA represented the interests of an adverse party to the defendant in a civil proceeding before representing the interests of the State in the criminal proceeding. Unlike White, ASA Podlasek did not represent an adverse private party in a prior civil proceeding. ASA Podlasek has not represented any other interests in any other proceedings under the facts of this case. Therefore, it is impossible to conclude that he is " interested" in the case as was the ASA in White. Also of note, ASA Podlasek did not choose to participate in the pending federal claims, whereas the ASA in White willingly undertook the representation of the private interests in civil court and had an attorney-client relationship with the private parties who where the alleged victims in the pending criminal action. State' s Attorney Alvarez is similarly situated to ASA Podlasek and is not "personally interested". White is not at all instructive. Defendant' s bare assertion that her federal civil action has created a conflict that would warrant the appointment of a special prosecutor is merely abstract and speculative. She has not alleged how that case impacts the State ' s Attorney's ability to prosecute the instant matter in state court. While Alvarez and Podlasek are named in a separate action in Federal Court, they are not parties in the pending criminal action, No. 08 CRl 0502, nor are they likely to be called as witnesses. Ultimately, Defendant' s argument that her federal suit has created a disabling conflict does not comport with the requirements of Section 3-9008 or the case law that permits-and at times requires-the appointment of a special prosecutor. There is no indication that CCSAO or ASA Podlasek are "interested" in this litigation as contemplated by statute or existing case law.

The question of the "appearance of impropriety" is, likewise, not a significant consideration at this time. Defendant has not raised any allegation that would prevent the State 's Attorney's Office from representing the interests of the People in this case. Defendant has not advanced any facts or theories that would arguably demonstrate that the public ' s confidence in the State's Attorney's Office would be diminished if allowed to proceed with this prosecution. Moreover, Defendant's criminal case is not widely publicized or of interest to the general public. Therefore, no "appearance of impropriety" in this case exists such that the appointment of a special prosecutor is required . III. Public Policy

Significant countervailing considerations also guide this Court in denying defendant's motion for the appointment of a special prosecutor. The legislature bestowed upon the State' s Attorney of each county many important responsibilities. Among them, the State's Attorney has the power "[t)o commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in the circuit court for [her] county, in which the people of the State or county may be concerned." 55 ILCS 5/3-9005. The electorate of each county has a substantial interest in seeing that their elected State's Attorney performs the duties he or she was elected to perform. Importantly, Defendant filed her federal civil suit after the commencement of this criminal case. The alleged conflict is the exclusive result of Defendant's post-indictment actions. To appoint a special prosecutor in these instances, where a defendant has filed for legal action against a prosecutorial agency following his or her indictment, would create unsound public policy. Such a policy would allow defendants to file civil lawsuits against their prosecutors for purposes of disqualifying them, thus creating needless litigation and depriving the People of pursuing justice through their elected prosecutors.

CONCLUSION

Defendant' s motion must be denied because defendant has failed to demonstrate that Assistant State' s Attorney Podlasek or State ' s Attorney Alvarez are personally interested in this case as contemplated by the law. Moreover, significant public policy considerations dictate that the arguments advanced in the "Motion to Have Mr. Podlasek Recused and to Appoint a Special Prosecutor" must be rejected. Accordingly, Defendant' s motion is hereby DENIED .

ENTERED:

~-T-+-~
Judge Dennis J. orter Circuit Court Cook County Criminal Division

DATED:

m 11 2o14