Madison - St. Clair Record

Wednesday, November 13, 2019

Defense lawyer in malicious prosecution suit: ‘Creating false evidence itself does not constitute an actionable wrong’

Federal Court

By The Madison County Record | Oct 10, 2019

Mcnaught
McNaught

EAST ST. LOUIS – Appointment of outside prosecutors didn’t separate former St. Clair County state’s attorney Brendan Kelly from an investigation of Circuit Judge Ron Duebbert, the judge’s lawyer argued in U.S. district court on Oct. 7. 

Attorney Michael Lawder of St. Louis, opposing a motion to dismiss Duebbert’s malicious prosecution suit, wrote that Kelly stated he did no significant work on the case. 

But Lawder wrote that Duebbert alleged that Kelly was part of a devious conspiracy from the beginning. 

He wrote that Kelly and the county responded that they only had involvement from the time of the warrant application to Oct. 5, 2017. 

“That is not what is pleaded,” Lawder wrote. 

He wrote that discovery would demonstrate more facts regarding investigation and involvement that took place after Oct. 5, 2017. 

Duebbert sued Kelly and the county in July, along with Belleville detectives Daniel Collins and Timothy Crimm and their city. 

He also sued the state, prosecutors Lorinda Lamken-Finnell and David Robinson, and their employers at the State’s Attorneys’ Appellate Prosecutor. And, he sued Carlos Rodriguez of Belleville, who signed an affidavit accusing him of sexual abuse, and Belleville lawyer Alex Enyart, who represented Rodriguez. 

All defendants have moved to dismiss his complaint. 

On Sept. 26, Duebbert opposed the motions of the prosecutors and their agency. 

On Oct. 7, when he opposed the motion from Kelly and the county, he also opposed a motion from Enyart. 

“Enyart’s contention that there are no allegations that he engaged in outrageous and extreme conduct is ludicrous,” Lawder wrote. 

“Enyart was directly and intimately involved in the conspiracy to wrongfully prosecute plaintiff as much as anyone else.” 

Also on that date, special assistant attorney general Karen McNaught replied to Duebbert’s opposition to her motions to dismiss his complaint. 

For the state, she rejected Duebbert’s claim that sovereign immunity didn’t apply because the prosecutors performed duties of a county official. 

“A state’s attorney in Illinois is a state constitutional officer with jurisdiction in the county in which he is elected,” McNaught wrote. 

For Lamken-Finnell and Robinson, she rejected Duebbert’s claim that they forfeited prosecutorial immunity by suborning perjury and fabricating evidence. 

“Whether prosecutorial immunity protects a prosecutor who suborns perjury depends on whether the subornation occurs before or after the prosecution has been initiated,” McNaught wrote. 

“Creating false evidence itself does not constitute an actionable wrong. 

“Until the false evidence is presented in court, the plaintiff has not been injured and no tort has been committed.” 

Lamken-Finnell and Robinson filed criminal information against Duebbert in 2017, on no evidence but the affidavit. 

They chose not to prosecute last year, when Rodriguez chose not to testify. 

Senior Judge Richard Mills of the Central District of Illinois presides, with Magistrate Judge Mark Beatty in charge of discovery. 

Beatty plans a scheduling conference on Nov. 6.

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