In a petition to appoint private counsel in a case involving a series of 2018 raids at the Madison County administration building, Alton attorney Amy Sholar alleges Madison County State’s Attorney Tom Gibbons’ prior involvement in grand jury proceedings warrants his removal from the case.
Sholar filed the petition March 6 on behalf of former county employee Stephen Adler. Adler is the current executive director of the Metro East Sanitary District.
Sholar argues that although visiting Associate Judge Jerry Crisel of the Second Judicial Circuit ended the corruption investigation and dismissed the Attorney General’s Office, the investigation appears to be ongoing.
“It is apparent that an investigation and/or pending litigation remains outstanding and as such petitioner Adler requires legal counsel to address these matters,” Sholar wrote. “The sitting State’s Attorney presumably is conflicted from representing Petitioner Adler.”
Crisel removed the Madison County State’s Attorney’s Office from any investigation or prosecution of Adler, County Administrator Doug Hulme, IT Director Rob Dorman, and Communications Manager Cynthia Ellis after their offices were subject to a mid-day raid on Jan. 10, 2018. Computers and other records were seized, prompting additional raids.
Crisel found that "an actual conflict of interest exists" and appointed the Illinois Attorney General “to carry out the task with all deliberate speed.”
However, he 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.”
“Unfortunately, removing the State’s Attorney from the investigation and/or prosecution is not enough to eliminate a conflict of interest,” Sholar wrote in her petition.
She argues that Gibbons’ role in the case is in contradiction with Illinois Rules of Professional Conduct, which state that a conflict of interest exists “if the representation of one client will be directly adverse to another client” and that a “lawyer shall act with reasonable diligence and promptness in representing a client.”
Sholar adds that “additional information has come to light which further illustrates a deeper conflict of interest and a basis for removal as attorney in all matters.”
“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. During the proceedings on May 10, 2018, this Honorable Court specifically asked Mr. Gibbons ‘was there not an Assistant State’s Attorney or you, the State’s Attorney, conducting or presenting evidence to the Grand Jury relative to the subpoenas?’ Mr. Gibbons responded, ‘I believe an Assistant State’s Attorney was probably present during the process, yes.’” Sholar wrote.
“In fact, upon information and belief, Mr. Gibbons indicated to Attorney Ed Moorman that Mr. Gibbons himself had conducted a portion of the Grand Jury investigation,” she added.
Sholar wrote that she requested grand jury transcripts to evaluate Gibbons’ involvement in October 2018.
“To date, these have not been provided,” the petition states.
“In light of these new circumstances, it is necessary that this Honorable Court appoint independent counsel for the Petitioner herein to be paid for by the County, or conduct a hearing to further inquire into these new allegations,” it continues.
Gibbons could not be reached for a comment.
The investigation and prosecution were terminated by Crisel on Jan. 24 when he ended the appointment of the Attorney General’s Office.
In a following order, Crisel’s wrote that he received a letter from the Attorney General’s Office stating that “it has no interest in the matter any more and is not planning to file any charges in this matter or any further investigation from its office.”
“The court finds that the Attorney General’s Office was in court and indicated that under no uncertain terms that they concluded the investigation and not following up with any further prosecution and requesting the end of their appointment, that it be vacated,” Crisel wrote.
“Thereafter, a ‘Seizure Warrant’ was executed related to an item seized during the pending investigation herein. Presumably under affidavit of the Madison County Sheriff,” Sholar wrote in her petition to appoint private counsel.
“Judges not assigned to this matter have extended sealing affidavits previously filed and additionally, another filed and additionally, another judge has executed the ‘Seizure Warrant.’ The apparent underlying cause of action in these matters stem from facts that are fully addressed herein and subject to the jurisdiction of this court,” she added.
Sholar also filed a petition to unseal the affidavit for a search warrant and release the grand jury transcripts.
“Based upon the fact that there is no further investigation herein and no proceedings initiated against Petitioner Adler, there is no basis for sealing the underlying affidavit for the search warrants issued,” she wrote. “Furthermore, all Grand Jury transcripts should be released herein under the same premises.”
Sholar argues that the Attorney General stated in 2007 that search warrants and their supporting documents are open to the public and subject to inspection unless a specific order is entered by the court.
She also argues that sealing an affidavit must be outweighed against public interest and First and Fourth Amendment challenges.
Sholar wrote that there “is no legitimate basis” for sealing affidavits for a concluded investigation or for withholding grand jury transcripts.
In a Feb. 5 order, Crisel granted a motion filed by Moorman to return seized items and reserved a judgment on his motion to unseal the affidavit for search warrant.
Crisel was assigned to preside over the case on Feb. 28, 2018 after former Madison County Chief Judge David Hylla requested a visiting judge be assigned.
Shortly after the investigation was terminated, Madison County Circuit Judge Christopher Threlkeld approved appointment of a special prosecutor upon Gibbons’ request to investigate alleged perjury.
The order does not provide details on who allegedly committed perjury or what the allegation is in regards to, but states that Gibbons suggested a conflict of interest exists.
Threlkeld granted the appointment on Feb. 11, stating that it is required in the “interest of justice.”