CHICAGO \u2014 A Cook County judge will rule next month on a petition to appoint a special prosecutor to investigate \u2014 and possibly charge \u2014 alleged abuses by federal immigration agents during the Trump administration\u2019s \u201cOperation Midway Blitz\u201d mass deportation campaign last fall.<\/p>\n
Judge Erica Reddick\u2019s decision, scheduled to be handed down on May 11, will take into account more than 1\u00bd hours of arguments in her courtroom Friday. Following weeks of legal back-and-forth, lawyers for more than 400 Cook County residents, including elected officials and community leaders, again accused Cook County State\u2019s Attorney Eileen O\u2019Neill Burke of \u201cabdicating her duty\u201d to constituents for not having opened any investigations into alleged wrongdoing by federal agents.<\/p>\n
\u201cThere are multiple conflicts preventing the state\u2019s attorney from doing her job for the people of Cook County,\u201d Meg Gould, an attorney with Chicago-based civil rights law firm Loevy & Loevy, argued Friday. She said the \u201cfirst and most straightforward conflict\u201d for O\u2019Neill Burke was that her refusal to lead investigations was tantamount to \u201cabdicating her duty.\u201d<\/p>\n
\u201cThis is a standalone reason to grant the petition,\u201d Gould said.<\/p>\n
Under Illinois law, special prosecutors can be appointed to oversee a particular case when a state\u2019s attorney has a conflict of interest. The action is rare but is most often associated with high-profile cases.<\/p>\n
For months, even before a political pressure campaign on O\u2019Neill Burke to go after federal agents morphed into the present court battle, the state\u2019s attorney has maintained that her office only has limited ability to open investigations without a request from law enforcement and to charge federal agents.<\/p>\n
Lawyers for the petitioners said their Freedom of Information Act requests indicate there have been no immigration agent-related complaints forwarded from the Chicago Police Department to the state\u2019s attorney\u2019s office for investigation.<\/p>\n
In court Friday, Cook County Assistant State\u2019s Attorney Yvette Loizon told the judge all of the petitioners\u2019 arguments for appointing a special prosecutor fall short of the legal standard for granting the extraordinary request.<\/p>\n
\u201cJudge, what we have here is a group of influential political leaders, community members from a cross-section of our city who are outraged. And they should be; we\u2019re outraged,\u201d she said. \u201cBut that outrage doesn\u2019t translate to what the law requires to appoint a special prosecutor.\u201d<\/p>\n
Gould said federal agents\u2019 alleged behavior was \u201ctextbook law enforcement misconduct,\u201d which any state\u2019s attorney has a responsibility to look into when a law enforcement agency is refusing to investigate itself.<\/p>\n
\u201cThese are not just brutal acts,\u201d Gould said. \u201cThey are crimes.\u201d<\/p>\n
She pointed to the Sept. 12 fatal shooting of Silverio Villegas Gonz\u00e1lez, an undocumented immigrant, in suburban Franklin Park, and the Oct. 4 shooting of Marimar Mart\u00ednez in Chicago\u2019s Brighton Park neighborhood as two of the most violent examples of agents\u2019 unexamined crimes.<\/p>\n
Beyond those, Gould said agents committed \u201caggravated batteries, assaults, kidnapping, conspiracy and acts of perjury,\u201d all of which she said O\u2019Neill Burke \u201chas the duty to investigate.\u201d<\/p>\n
\u2018No confidence at all\u2019<\/p>\n
In addition to O\u2019Neill Burke\u2019s non-action on investigating federal agents\u2019 alleged crimes, petitioners\u2019 attorneys argued that the state\u2019s attorney has a \u201cpolitical alliance\u201d with federal law enforcement, which also constitutes a conflict of interest.<\/p>\n
Attorneys for the petitioners pointed to an August email, obtained via a Freedom of Information Act request, in which a former top staffer for O\u2019Neill Burke declined a request for the state\u2019s attorney to sign on to a letter condemning President Donald Trump for his threats to deploy National Guard troops to Chicago. Trump eventually followed through on the threat in early October, but mobilization of guardsmen was ultimately blocked by a federal judge.<\/p>\n
The Aug. 11 email, dated nearly a month before Operation Midway Blitz began, explained why O\u2019Neill Burke would not sign onto the joint letter.<\/p>\n
\u201cWe obviously share concerns about Trump\u2019s actions, rhetoric and bluster,\u201d then-state\u2019s attorney spokesman Matt McGrath wrote. \u201cAt the same time, the State\u2019s Attorney\u2019s top priority remains combating illegal guns, and to continue doing that effectively we need to maintain our excellent working relationships with the local ATF and other federal partners.\u201d<\/p>\n
Loevy & Loevy attorney Locke Bowman said the email was further evidence that O\u2019Neill Burke has a conflict of interest necessitating the appointment of a special prosecutor.<\/p>\n
\u201cIf she was unwilling to criticize the invasion of Cook County as it was about to happen, what confidence can the citizens of Cook County have that now \u2014 in the aftermath, when violence has been perpetrated, when crimes have been committed \u2014 that she will be the person to step up and investigate those who have committed crimes?\u201d he told the judge. \u201cI submit that the answer is no confidence at all.\u201d<\/p>\n
\u2018We want to do it right\u2019<\/p>\n
Loizon cited a pair of Illinois Supreme Court rulings dealing with special prosecutors, saying they ultimately instructed caution so as to not risk prosecutions getting overturned on appeal.<\/p>\n
She said O\u2019Neill Burke didn\u2019t sign onto \u201cpolitical statements\u201d like the August letter to mitigate that risk. Further, Loizon pointed to February guidelines the state\u2019s attorney published for her office to follow for handling any future investigations of federal agents.<\/p>\n
\u201cThe state\u2019s attorney made it clear in her protocol, and we\u2019re making it clear here today, that if ICE agents get investigated \u2026 we want to do it right,\u201d Loizon said. \u201cThat we can actually hold them accountable without impediment.\u201d<\/p>\n
In a brief filed last month, the state\u2019s attorney\u2019s office wrote that \u201cinvestigating and charging a case simply to have it dismissed before trial \u2026 would bring no accountability for any criminal acts arising out of Operation Midway Blitz and does nothing to advance the public interest.\u201d<\/p>\n
In a news conference after Friday\u2019s hearing, Loevy & Loevy attorney Steve Art responded to that claim, saying there\u2019s always inherent risk in bringing charges: \u201cThat there will be a successful defense to the charges, that a witness won\u2019t show up to testify, that something will go wrong in the case.\u201d<\/p>\n
\u201cFor any of those things to happen, however, we need to get to the starting line,\u201d Art said. \u201cAnd the starting line is somebody who will not prosecute no matter what, but somebody who will look at the evidence and exercise some kind of prosecutorial power to say there needs to be accountability and justice in this case.\u201d<\/p>\n
He also dismissed O\u2019Neill Burke\u2019s perpetual concern about the federal Supremacy Clause and qualified immunity for federal agents, saying \u201cwe\u2019re never going to know\u201d what effect they have legally \u201cunless someone comes in and actually prosecutes and investigates these crimes in the first place.\u201d<\/p>\n
\u201cSo what the Supremacy Clause really says in this context is if somebody is doing something reasonable related to their job, they\u2019re going to have a defense in an ultimate prosecution of the case, which is a reasonable doctrine to have,\u201d he said. \u201cI don\u2019t think that anybody who takes a fair look at the evidence of these serious crimes could possibly say that they are related to a federal law enforcement prerogative, or that they\u2019re reasonable.\u201d<\/p>\n