Charges thrown out for second Bianchi investigator
A judge has dismissed a felony misconduct charge against McHenry County investigator Michael McCleary because he was accused of violating a county policy that was not written into state law.
Special Prosecutors Henry Tonigan and Thomas McQueen have 14 days to decide whether to re-indict McCleary on charges he used a county vehicle for personal use.
The ruling by Winnebago County Judge Joseph McGraw means charges against both investigators in the second misconduct case against McHenry County State's Attorney Louis Bianchi have been thrown out.
A misconduct charge against lead investigator Ron Salgado was thrown out in early June because the indictment against Salgado failed to state a cause of action.
In other words, Salgado could not have violated a defendant's equal protection under law because Salgado is an investigator, not at a prosecutor.
"To say this case is falling apart is an understatement. This case has disintegrated," said Bianchi's defense attorney, Terry Ekl.
McCleary's attorney, Christopher DeRango, also was pleased with the decision.
"(The indictment) seemed like a reach. I think the judge's ruling is a pretty strong indication he felt the same way," DeRango said. "It never had wheels to begin with."
Last Friday, DeRango argued that the charge against his client was invalid because violations to the county's internal policies were not adopted into state law and, therefore, even if McCleary used a county vehicle improperly it was an offense punishable by the county rather than the state.
Bianchi remains accused of lessening penalties or throwing out cases for relatives and political supporters.
It is the second batch of misconduct charges against Bianchi.
In March, he and secretary Joyce Synek were found not guilty halfway through a trial on charges they conspired to use county resources and personnel to further his re-election campaign.
McGraw halted the trial for insufficient evidence without the defense even calling a witness. Bianchi Thursday declined to discuss his case, but said the charges against his two investigators never should have been filed. He said McCleary is allowed to drive his county vehicle home because he serves subpoenas at all hours, including at least two right after he posted bond and was released from jail after he was charged with misconduct in February.
"In my opinion, the citizens of McHenry County are privileged and fortunate to have two individuals that are dedicated and work so hard," Bianchi said. "To indict them was reckless and ruthless conduct."
A message left with Tonigan's office was not returned.
Both prosecutors have asked to be removed from the case at one point or another.
Tonigan asked to be removed in April to care for his ailing, elderly father. But a judge deferred ruling on that request until an appeal from the McHenry County Board over legal fees was resolved.
McQueen, the second prosecutor in the case, has asked to be removed because he says the possibility of a lawsuit by Bianchi could affect his ability to make decisions as a prosecutor. McGraw will hear arguments on that request Friday morning.
Bianchi's second trial is set for Aug. 1.
If convicted, he faces up to five years in prison, but probation also is an option.