Court: Plea in Wheaton abandonment violated public policy
DuPage County’s former state’s attorney violated public policy and failed to act in the best interest of an infant abandoned in Wheaton when his office entered into a plea agreement with the child’s mother two years ago, an appeals court wrote in an opinion released Tuesday.
But the error puts Nunu Sung no closer to being reunited with her son, now 3, partly because she turned down an offer to withdraw the plea before a judge terminated her parental rights in February, the court ruled.
Sung, a Burmese refugee, pleaded guilty in October 2010 to obstructing justice for lying to police about abandoning her newborn behind her cousin’s Wheaton home after secretly giving birth outdoors. In exchange, she received a three-year prison term and prosecutors agreed not to push for the termination of her parental rights based on the June 2009 abandonment.
On Tuesday, Illinois’ 2nd District Appellate Court in Elgin published an opinion saying neither Sung nor former State’s Attorney Joe Birkett could negotiate such a deal because it was “so capable of producing harm that its enforcement would be contrary to the public interest.”
“(T) he state’s attorney clearly did not have the power to tie the hands of the juvenile court and the (child’s guardian) to act in the best interest of the minor,” the court wrote. “Moreover, the state’s attorney failed to act in the best interest of the minor as he was bound to do, and the respondent (Sung) lacked the authority to negotiate away the best interest of the minor.”
Appellate Justice Mary Schostock delivered the opinion with Justices Ann Jorgensen and Robert McLaren concurring. Birkett, who left office in December 2010, now sits on the court that issued the ruling, though he recused himself in the case because of his earlier involvement. He said Tuesday he supports the finding.
“Regardless of whether or not you personally review a case or handle a case, (as state’s attorney) you’re responsible for the acts of your assistant state’s attorneys,” he said. “I read the opinion and I agree with it. The assistant state’s attorneys who handled this case sought justice and, obviously, hindsight is 20/20. There’s no such thing as perfection.”
Birkett said it was the first out of thousands of plea deals handled during his 30-year tenure as a prosecutor to go against public policy.
The appellate court said Sung, 27, had a chance to withdraw her plea, which effectively would have set her case back to the beginning and provided remedy for the error. But she rejected the offer and, after several weeks of testimony, a judge terminated her parental rights in February.
The appellate court also found there was enough evidence to strip Sung of her parental rights and rejected her argument that the judge hearing her case was prejudiced against her.
Sung’s attorney, Terra Howard, said Sung remained in the custody of immigrations officials who want to deport her because of her criminal record. She said Sung is considering appealing her case to the state Supreme Court.
“She served her sentence and was held to her end of the deal, while the state wasn’t held to theirs,” Howard said.
The state’s attorney’s office declined to comment.
A Wheaton couple has cared for Sung’s child since shortly after his birth and have said they want to adopt.