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Judge Evans: Why I can't name a special prosecutor in Laquan McDonald case

Tuesday, December 15, 2015
Chicago Tribune
by Chief Judge Tim Evans

The shooting of 17-year-old Laquan McDonald has brought a court decision to release video of the incident, public demonstrations and a Justice Department investigation.

Now, the Cook County state's attorney's office has charged Chicago police Officer Jason Van Dyke with first-degree murder.

Recently, several people have asked me to remove the state's attorney from the case and appoint a special prosecutor.

I do not have the power to do that.

As chief judge of the Cook County Circuit Court, I have many responsibilities but do not have the authority to review decisions made by other judges or intervene in cases assigned to other judges.

A system that would permit any judge (even a chief judge) to intervene in a case properly pending before a different judge, who had been assigned the case, would be one that lacks the constitutionally required checks and balances that come with due process. That would be unfair and unjust.

A state statute governs the procedure to consider appointment of a special prosecutor in any case in the circuit courts of Illinois.

Because the Illinois Code of Judicial Conduct, which is part of the Illinois Supreme Court Rules, prohibits judges from commenting on pending or impending court cases and from giving legal advice, please note that nothing I state here should be construed as a comment on the prosecution of Mr. Van Dyke or the death of Mr. McDonald.

I am writing today in the interest of public information and education to describe some of the procedures regarding appointment of a special prosecutor. Given the amount of media attention on a local, national and international scale, citizens deserve to be fully informed about the procedures a judge must follow in considering whether to grant a request to appoint a special prosecutor.

The statute is clear: Only the judge to whom the case is assigned can decide whether to appoint a special prosecutor. Such a decision is subject to a hearing held in open court in which parties can make arguments for or against it.

The Illinois General Assembly approved changes to this statute that take effect Jan. 1. The changes appear to allow the assigned judge to take the initiative to start the process of considering whether a special prosecutor should be appointed.

The new version of the statute says: "The court on its own motion, or an interested person in a cause or proceeding, civil or criminal, may file a petition alleging that the state's attorney has an actual conflict of interest in the cause or proceeding. The court shall consider the petition, any documents filed in response, and if necessary, grant a hearing to determine whether the state's attorney has an actual conflict of interest in the cause or proceeding. If the court finds that the petitioner has proven by sufficient facts and evidence that the state's attorney has an actual conflict of interest in a specific case, the court may appoint some competent attorney to prosecute or defend the cause or proceeding."

If the motion is brought by an "interested person," the judge can decide if that person may intervene.

If the "interested person" alleges that the state's attorney has a conflict of interest and the state's attorney disagrees, the judge would allow the state's attorney to file a response that would contain any facts and law the prosecutor believes justify denying the request. If the two positions raise genuine questions concerning facts important to determine if a conflict of interest exists, the judge may conduct a hearing in which evidence is presented. If the state's attorney agrees there is a conflict of interest, it is less likely a hearing would be held.

If the judge decides to appoint a special prosecutor, the judge must first contact other prosecutorial offices in the state — such as the Illinois attorney general and state's attorneys in other counties — to determine if one of those offices is available to serve as a special prosecutor at no cost to the county. If not, the judge may appoint a private attorney to serve as special prosecutor.

It is clear that emotions are running high. I hope my words provide clarity on how the court system does justice.

Timothy C. Evans is the chief judge of Cook County Circuit Court.

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