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McCall v. Devine8/30/2002
interest to require appointment of a special prosecutor. Nevertheless, 'political alliance' is an amorphous concept. It might range from a prosecutor belonging to the same political party as the person he is called upon to prosecute, to a situation in which a prosecutor is clearly beholden to a potential defendant for political reasons. Before a court need appoint a special prosecutor because the State's Attorney has a conflict of interest because of a 'political alliance,' a petitioner must plead and prove specific facts regarding the nature of the alliance as well as facts tending to show the State's Attorney would not zealously represent the People of the State of Illinois because of the alliance. To require a petitioner to plead and prove anything less would open the door to requiring a special prosecutor be appointed any time a public official of whatever rank is suspected of wrongdoing." Baxter, 156 Ill. App. 3d at 566.
The court went on to state that absent specific facts regarding the alleged political ties which would make it improbable that the State's Attorney would carry out his duties in an unbiased manner on a specific case, the statute does not require appointment of a special prosecutor to substitute for the State's Attorney. Baxter, 156 Ill. App. 3d at 566-67. Because the plaintiff's allegations regarding any political ties were "speculative and conclusory," the circuit court properly declined to appoint a special prosecutor. Baxter, 156 Ill. App. 3d at 567.
In analogizing Baxter to the case at bar, it is clear that McCall's petition is similarly insufficient to warrant the appointment of a special prosecutor. McCall has failed to plead specific facts regarding the alleged relationship of "cordiality, compatibility, support, fidelity" between Devine and the Chicago police department which would make it improbable that Devine would conduct an unbiased investigation and prosecution in this case. In support of her argument that a disqualifying bond exists, McCall's petition alleges "well over 90% of the cases prosecuted by the Cook County State's Attorney's office are indeed investigated and brought by the Chicago police department." We agree with the trial court that this fact alone does not establish a disqualifying bond.
Accepting the allegation as true, the trial court stated "it hardly follows that the purported fidelity bond and relationship complained of by petitioner would have impacted on respondent's investigation or prosecution of police officers suspected of wrong doing." The court continued:
"On the contrary, the State's Attorney's office in this court's memory has never hesitated to prosecute law enforcement officials where the evidence warranted criminal charges. See e.g., People v. Davis, 281 Ill. App. 3d 984, (1996) (director of news affairs for the Chicago police department prosecuted for official misconduct); People v. Sorice, 182 Ill. App. 3d 949 (1989) (Chicago police officer prosecuted for conspiracy to commit burglary); People v. Melchor, 180 Ill. App. 3d 372 (1989) (Chicago police officer prosecuted for delivery of a controlled substance); People v. Earullo, 113 Ill. App. 3d 774 (1983) (Chicago police officer prosecuted for involuntary manslaughter); People v. McCarthy, 102 Ill. App. 3d 519 (1981) (Chicago police officer charged with attempt murder and aggravated battery); People v. Molsby, 66 Ill. App. 3d 647 (1978) (Chicago police officer prosecuted for possession of a controlled substance); and People v. Jordon, 15 Ill. App. 3d 672 (1973) (Chicago police officer prosecuted for bribery and official misconduct)."
For this court to hold that the trial court abused its discretion in denying the petition would require u
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