Police, prosecutors at odds over what video shows in assault case

They say the video doesn't lie — but can it tell two different stories?

That appears to be the case for a Naperville man accused of swerving his vehicle at a teenage demonstrator outside Aurora's Planned Parenthood clinic.

Police and prosecutors drew different conclusions after watching surveillance footage of Michael Fabian passing by the teen in February while driving a GMC Yukon.

Aurora police closed their investigation as “unfounded” in late April, saying video shot from several angles showed Fabian “appearing to drive in a straight, nonaggressive manner,” according to investigative reports obtained by the Daily Herald.

But in March, DuPage County prosecutors charged Fabian, 25, with misdemeanor aggravated assault for “nearly striking” the girl, according to court records.

The case involves a highly unusual circumstance where authorities apparently have diverging opinions on the same evidence, a legal expert said.

“Usually, if there's a disagreement, it's the prosecutor saying, 'Go get me more (evidence),'” said Lawrence Schlam, a veteran attorney and professor of constitutional law at Northern Illinois University in DeKalb.

The 15-year-old protester, whose name was redacted from police reports, told investigators the driver swerved “five to 10 feet” in her direction as she tried to hand out anti-abortion pamphlets along a frontage road outside Planned Parenthood, which offers abortion services.

She said the driver, who had just left the clinic, “looked angry” and would have struck her had she not taken a few steps back, according to reports.

Police declined to comment on the investigation, but DuPage County State's Attorney Bob Berlin's office issued a brief statement defending the decision to charge Fabian.

“The American Bar Association standard requires that prosecutors believe after reviewing a case that there's sufficient admissible evidence to support a conviction,” Berlin spokesman Paul Darrah said. “We believe that to be so in this case.”

The girl was one of about 10 students demonstrating as part of a program conducted through Christian Liberty Academy in Arlington Heights. In addition to reviewing video footage, police interviewed six eyewitnesses who said the vehicle clearly swerved at her.

“I'm beyond sure of what I saw,” said David Bergquist, the school's security chief and director of its Live Pro-Life program. “In my opinion, the young man should be prosecuted to the fullest extent of the law. He put a person's life in danger.”

Defense attorney Richard Kayne is representing Fabian, who admitted driving the Yukon but denied swerving, according to police reports.

Kayne said he believes “police did a thorough investigation.”

“We're eager to see what the videos show,” he said, declining further comment.

While police usually collect evidence, the decision to charge someone ultimately lies with the state's attorney. Schlam said he could only speculate that prosecutors believe they “have enough evidence and enough public support” to move ahead.

“They're entitled to look at the same stuff the cops look at and come up with a different decision,” though disputes can make it more difficult to obtain a conviction, he said.

“It's nice to know police are careful about reviewing evidence and deciding whether they want to go to the prosecutor, but there's lots of reasons they (prosecutors) might feel differently,” Schlam added. “It could be a quasi-political point. Maybe they're trying to discourage this.”

Police declined to release the videos, citing the girl's age. Planned Parenthood also would not release the footage or comment on the investigation.

Bergquist said students from Christian Liberty Academy protest once or twice a month outside the clinic at 3051 New York St. but haven't confronted any other issues.

On Friday, Marie Sulita of Aurora was among a group of demonstrators at the clinic, which has drawn regular protests since opening in 2007.

She said cars frequently swerve in her direction and a man once threatened her life. But as a Christian, she's always “turned the other cheek.”

Sulita said she was reconsidering her position.

“From now on, if anything like that happens again, I will press charges — just so they know you can't treat people like that,” she said.

Fabian's next court date is July 16.