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McCall v. Devine8/30/2002
UNPUBLISHED
On February 8, 2000, petitioner, Patsy McCall, filed a petition for the appointment of a special prosecutor to investigate and prosecute unknown Chicago police officers for the fatal shooting death of her son, Reginald Cole. Cole was in the custody of the Chicago police department when the shooting occurred. Cook County State's Attorney Richard A. Devine filed a motion for leave to intervene, which was granted by the trial court over McCall's objections. Devine then filed a motion for judgment on the pleadings. Following argument by the parties, the trial court entered an 18-page order granting Devine's motion and ordering judgment on the pleadings and dismissed the petition for appointment of a special prosecutor.
McCall now appeals. On appeal, McCall argues that the trial court erroneously granted the motion for judgment on the pleadings where the petition established a cause of action for the appointment of a special prosecutor. McCall argues that Devine's relationship with the Chicago police department has created a conflict of interest that prohibits Devine from conducting a fair and impartial investigation and prosecution of the officers.
For the reasons that follow, we affirm.
I. BACKGROUND
On October 30, 1999, Reginald Cole was transferred from the Illinois River Correctional Facility in Canton, Illinois, to the Chicago police Area One facility located at 5101 South Wentworth Avenue in Chicago. At that time, Cole was in the custody of the Illinois Department of Corrections serving a 10-year sentence for armed robbery. Cole was transported to Area One to be questioned in connection with an ongoing homicide investigation. Within hours of his arrival, Cole died as a result of gunshot wounds suffered while in the custody of Chicago police officers at Area One. Both the Cook County State's Attorney's office and the Cook County medical examiner's office began investigating the incident on the evening Cole died.
On October 31, 1999, the medical examiner issued a report which stated that Cole sustained three gunshot wounds: one to the abdomen, one to the right arm and one to the mouth. The report concluded that Cole died as a result of a self-inflicted gunshot wound to the mouth. The State's Attorney's office similarly concluded that Cole's death was not a homicide and determined that no charges would be filed against any officers involved in the incident.
On February 8, 2000, Patsy McCall, Cole's mother, filed a petition for the appointment of a special prosecutor to investigate and criminally prosecute the unknown officers involved in the shooting death of her son. McCall's claim for relief is based upon section 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2000)) which provides:
"Whenever the State's attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal , which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding *" 55 ILCS 5/3-9008 (West 2000).
McCall's petition alleges that there are gross conflicts of interest in the State's Attorney investigating and prosecuting officers in the Chicago police department for Cole's death. Specifically, McCall alleged that the State's Attorney and the Chicago police department have a relationship of "cordiality, compatibility, support, fidelity" and that this relationship makes it impossible for the State's Attorney's office to conduct an "independent, unbiased, honest and impartial investigation into the shooting death of Reginald Cole." The pet
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