Bianchi wants malicious prosecution lawsuit reinstated
Attorneys for McHenry County State's Attorney Lou Bianchi - who was acquitted in two misconduct trials in 2011 - pushed Thursday to have a malicious prosecution lawsuit reinstated, arguing that manufacturing evidence should not be protected under absolute immunity granted to prosecutors in general.
Bianchi was found not guilty of charges he used county resources to bolster his re-election campaign and that he lessened penalties in criminal cases for his political allies and campaign donors.
In both cases, Bianchi didn't even have to call a defense witness as the judge stopped the cases midway through because of lack of evidence.
Bianchi filed a lawsuit alleging malicious prosecution and intentional infliction of emotional distress against Thomas McQueen - who was appointed a special prosecutor in the case by a McHenry County judge - as well as a Quest Consultants, a forensic computer firm contracted by the special prosecutor to assist in the investigation.
A judge dismissed Bianchi's lawsuit. Thursday, his attorneys argued before an appellate court panel to have it reinstated.
Attorney Tracy Stanker argued McQueen and other investigators "fabricated and manufactured" evidence against Bianchi in a malicious effort to ruin him, and simultaneously and intentionally buried evidence favorable to him after conducting interviews.
"We have this all in emails," Stanker told the three-judge panel. "They made up evidence. They made up witness statements and they also concealed exculpatory evidence."
Stanker said reinstating the lawsuit would not act as a deterrent to prosecutors conducting a good faith investigation. "A judgment for the plaintiff would in no way restrict state employees from doing their duties," she said. "The defendants weren't acting accidentally or inadvertently. They didn't just make mistakes. They fabricated evidence."
Steven Puiszis, a defense attorney for McQueen, argued his client was appointed as a special prosecutor by court order. Therefore, McQueen became an employee of the state, which means he is afforded the absolute immunity protection for all assistant state's attorneys.
"There is no such thing as a private prosecutor," Puiszis said. "Prosecutors are entitled to absolute immunity when they function as prosecutors."
The panel did not immediately rule on the matter and took the case under advisement.
A judge in January 2014 found McQueen not guilty of contempt of court in the Bianchi prosecution, but called his actions "revolting," "unconscionable" and "repugnant."
Henry Tonigan, the other special prosecutor appointed to the Bianchi case, settled the lawsuit Bianchi filed against him for $157,000 in summer 2012.