Former Madison County employee Stephen Adler argues that a conflict of interest still exists in a corruption case against county officials based on new information regarding Madison County State’s Attorney Tom Gibbons’ involvement in a grand jury investigation that resulted in a series of raids at the county administration building.
“That since the entry of the order additional information has come to light which further illustrates a deeper conflict of interest and a basis for removal as attorney in all matters,” Alton attorney Amy Sholar wrote in an Oct. 10 motion to vacate.
On behalf of Adler, the current executive director of the Metro East Sanitary District, Sholar filed a motion to vacate in part a June 11 order filed by visiting Associate Judge Jerry Crisel of the Second Judicial Circuit.
Adler requests the court appoint Sholar as his independent counsel at the county’s expense or to conduct a hearing to further investigate Gibbons’ involvement in the Grand Jury.
Crisel’s order had granted in part and denied in part motions for an order finding a conflict of interest exists in the cases involving a series of raids beginning Jan. 10. Computers and other records were taken from the offices of county administrator Doug Hulme, IT director Rob Dorman and the county’s former FOIA officer Cynthia Ellis.
Hulme, Dorman, County Board chairman Kurt Prenzler and Adler filed the motions. While Prenzler’s office was not subject to the raid, he joined the other county officials as a petitioner in their conflict of interest dispute.
In his order, Crisel wrote that “an actual conflict of interest exists between the legal duties of the State’s Attorney and the petitioners in their capacity as current or former county officials.”
Crisel removed Gibbons from any investigation or prosecution of the petitioners and appointed the Illinois Attorney General’s Office as special prosecutor.
However, Crisel denied the petitioners’ request to appoint private counsel at the county’s expense, finding that “the sitting State’s Attorney is still charged with that duty, the conflict having been removed.”
In her motion to vacate, Sholar wrote that “[u]nfortunately, removing the State’s Attorney from the investigation and/or prosecution is not enough to eliminate a conflict of interest.”
She argues that Gibbons’ role in the case is “directly in contradiction” to Illinois Rules of Professional Conduct of 2010 Rules 1.7 and 1.3.
According to Rule 1.7, “A conflict of interest exists if (1) the representation of one client will be directly adverse to another client.
According to Rule 1.3, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
Sholar argues that new information regarding Gibbons’ involvement in the grand jury “is directly in contradiction with those rules.”
“That upon information and belief, State’s Attorney Thomas Gibbons previously purported that he had limited information with regards to the Grand Jury investigation for the various petitioners,” Sholar wrote.
During a May 10 hearing on the question of a whether or not a conflict of interest exists, Crisel asked Gibbons about the his involvement or the State’s Attorney’s Office’s involvement in conducting or presenting evidence to the Grand Jury relative to the subpoenas.
Gibbons responded, “I believe an Assistant State’s Attorney was probably present during the process, yes,” the motion to vacate states.
“In fact, upon information and believe, Mr. Gibbons indicated to attorney Ed Moorman that Mr. Gibbons himself had conducted a portion of the Grand Jury investigation,” Sholar wrote.
Moorman, of Alton, was present at the May 10 hearing with Hulme and Dorman.
According to the motion to vacate, Adler requested the Grand Jury transcripts on Oct. 10 “in order to evaluate State’s Attorney Thomas Gibbons’ involvement with the Grand Jury.”
During the hearing, Gibbons told Crisel that while it is likely that an assistant state’s attorney presented evidence to the grand jury for the subpoenas, he said his office would have only begun prosecution if an indictment was issued or if a law enforcement officer came to him with evidence information.
However, Crisel held that the state’s attorney’s prosecutorial duties are not limited “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 of indictments handed down by a grand jury.
“A prosecutor may also perform ‘the investigative functions normally performed by a detective or police office’ by searching for the clues and corroboration that might furnish probable cause to recommend that a suspect be arrested.
“Generally, Illinois case law recognizes that a State’s Attorney has an affirmative duty to investigate the facts and determine whether an offense has been committed,” Crisel wrote in his June 11 order.
He added that the duties of a grand jury as they relate to the state’s attorney are significant.
Crisel wrote that during the May 10 hearing, Gibbons “acknowledged that the State’s Attorney is a party to a grand jury proceeding and was so as it relates to these matters.”
A grand jury is not an independent body, Crisel held, and can only hear evidence presented by the State’s Attorney or Attorney General. A grand jury has the right to subpoena and question anyone, but it can only do so under the guidance of the prosecutor “who is the only official allowed to meet with it in its secret proceedings.”
“It is a valuable tool in the prosecutor’s tool kit, which gives a seed of truth to the old adage that a good prosecutor could get a grand jury to indict a ham sandwich,” Crisel wrote.
Gibbons had also argued during the May 10 hearing that there is no conflict of interest in regards to Adler. He argued that he is not required to provide counsel to Adler as state’s attorney because Adler is no longer a county employee.
However, Crisel held that “it is clear that the obtaining of records from him through the subject investigation is based on his employment with Madison County in 2017 or earlier …”
Crisel was assigned to preside over the question of a conflict of interest on Feb. 28 after Madison County Chief Judge David Hylla requested a visiting judge be assigned to the case.
Ellis has not argued that a conflict of interest exists.
Madison County Circuit Court case number 18-MR-500233