EDWARDSVILLE – Madison County State’s Attorney Tom Gibbons, who started an investigation into county board chairman Kurt Prenzler and created a task force for it, lost an argument that the investigation and the task force weren’t his.
Gibbons’s denials of responsibility didn’t persuade visiting judge Jerry Crisel of Albion, who removed him from the investigation on June 11.
Crisel asked Attorney General Lisa Madigan to appoint a special prosecutor.
As of June 18, Madigan had not appointed one.
The task force seized computers on Jan. 10, in a raid of several offices in Prenzler’s administration.
Prenzler, administrator Doug Hulme, and information technology director Robert Dorman moved for an order finding a conflict of interest on Gibbons’s part.
They claimed his actions clashed with his duty to represent them.
Former county official Stephen Adler, director of the Metro East Sanitary District, separately moved for the same order.
No judge of the Third Judicial Circuit would hear the cases, so Chief Judge David Hylla asked the Illinois Supreme Court to assign a judge.
The Court referred the cases to Second Judicial Circuit Chief Judge Thomas Tedeschi, who assigned Crisel.
At a hearing on May 10, Gibbons told Crisel that petitioners alleged no evidence that his office was exercising authority.
He said they alleged that his office caused a search warrant to be issued.
“As the court is well aware, search warrants are not issued by the state’s attorney’s office,” Gibbons said. “Search warrants are considered and granted or denied based upon the petition by a law enforcement officer, a police officer, which I would assume is the case in these particular cases.”
He said he hadn’t seen the petitions or the warrants and said he didn’t prepare them and didn’t have copies.
Crisel said, “Is it standard procedure in your county that the state’s attorney’s office has nothing to do with search warrants being issued?”
Gibbons said that wouldn’t be completely accurate.
He said police consult with state’s attorneys as to what language to use, and said that’s not the same as issuing a search warrant or causing it to be issued.
“The state’s attorney is a party to the grand jury proceeding,” Gibbons said. “That’s statutory and it is factually accurate.
“However, the state’s attorney’s office is simply facilitating the proceedings of a grand jury.”
After Gibbons mentioned a subpoena, Crisel asked him who prepared it.
Gibbons said he didn’t know.
Crisel asked him if he or an assistant was in the grand jury proceeding.
Gibbons said he believed an assistant was probably present. He said the search warrants and the subpoena didn’t constitute prosecution.
He said he was aware of no indictments.
“I’m sure that the movants here are probably happy about that fact,” Gibbons said.
“These motions are premature because no prosecutorial power has been exercised by the state’s attorney’s office.”
He said Adler lacked standing because he’s not a county employee.
He further said that movants didn’t contact him to request legal counsel, though a staff member in Dorman’s department, Andrew Esping, sent him email about the grand jury subpoena.
He said he was concerned that Esping might provide evidence to the detriment of Dorman or other individuals he represented.
He said he responded by not giving Esping legal advice and directing him to the proper statutory method for obtaining counsel.
He said that if a grand jury issued indictments or a law enforcement officer came to his office seeking a felony information, “that would change the calculus.”
Edward Moorman, representing Prenzler, Hulme and Dorman, said, “Our prayer is that we have a hearing to determine whether he has a conflict of interest.”
Moorman quoted Gibbons saying he had nothing to do with issuing the search warrant.
“Maybe if we have a hearing to determine that, it will be determined by the court that that’s the truth,” Moorman said.
“But that factual assertion has not been subject to cross examination. We believe that there are witnesses in the form of police officers who can testify and will testify that all of this came out of the state’s attorney’s office.”
Amy Sholar, representing Adler, said he had standing because he was a county employee at the time in question.
She said it’s never premature to avoid a conflict of interest and there is great harm in allowing a conflict to go on.
“Our first and foremost request would be to disqualify the state’s attorney’s office and request that a special prosecutor be appointed in this matter,” Sholar said.
Crisel asked if that would be the attorney general.
Sholar said, “It could be either the attorney general or-”
Crisel said, “State’s attorney appellate prosecutor.”
Sholar said, “Anyone outside of the county would be appropriate in my opinion.”
Gibbons said that in December, he was provided with information on potential wrongdoing by members of the administration.
He said he asked state police, the sheriff, and police departments in Alton, Edwardsville, and Collinsville if they would create a task force.
“They themselves created it,” Gibbons said. “They themselves conducted this thing.
“They took the evidence from me and they have proceeded since that time independent of the state’s attorney’s office.
“Prosecution is not occurring. Prosecution only occurs once there is an indictment or an information.”
Crisel asked what the harm would be if a special prosecutor were appointed.
Gibbons said, “I guess I would ask, what would they do? What would be the point? There’s no prosecution.”
He said if an indictment were issued, he would have a legal requirement to move forward on it.
“I like being a prosecutor better than anything, judge,” Gibbons said.
Crisel said, “I gathered that.”
A month after the hearing, Crisel found that a conflict of interest existed.
“The prosecutorial duties of the state’s attorney are not limited, as state’s attorney Gibbons argued, to the carrying forward of complaints filed by the police, informations under his or her signature and supported by a court’s finding of probable cause, or indictments handed down by a grand jury,” Crisel wrote.
Crisel attached particular pertinence to a statement in criminal code that a grand jury has a right to subpoena and question any person against whom the state’s attorney is seeking an indictment.
He wrote that under the code, a state’s attorney should inform a grand jury of these rights prior to commencement of its duties and before consideration of each matter.
He quoted from a handbook for grand jurors that, “Most of the cases that you will consider as a grand juror will be brought to your attention and come before you as a result of investigation and preparation of the prosecutor.”
He quoted from the handbook that a grand jury possesses broad powers to inquire into crime and corruption, and that “It has a right under the law to make its own investigation unaided by the court and assisted by any prosecuting attorney.”
Crisel wrote that at oral argument, Gibbons acknowledged that the state’s attorney is a party to a grand jury proceeding.
He wrote that a grand jury could only subpoena and question a person under the guidance and direction of a prosecutor.
He called a grand jury a valuable tool, “which gives a seed of truth to the old adage that a good prosecutor could get a grand jury to indict a ham sandwich.”
He wrote that Gibbons further acknowledged that he currently represents Dorman, Hulme and Prenzler, and that there was a factual dispute about Adler, but that obtaining records from him based on former employment with the county gave him standing.
He wrote that Gibbons further acknowledged that he contacted state police and Madison County law enforcement agencies and asked them to create a task force.
Even if Gibbons didn’t assist in preparing or obtaining search warrants, “the law tosses the ball to the state’s attorney to defend any search and seizure challenged by anyone having legal standing,” Gibbons wrote.
He wrote that it was in the state’s attorney’s interest “to see to it that the paperwork will stand up under judicial scrutiny should charges go forward relying on evidence obtained as a result of the search.”
For the state’s attorney to remain in a holding pattern while the task force completes its work would not be appropriate and could damage the reality and perception of justice, he wrote.