Defense: Murder charges should be dropped due to email breach
The Kane County public defender is accusing the state's attorney's office of improperly accessing privileged emails, which discuss legal strategy, between defendants and the public defender's office in more than 200 cases.
The office is using the argument to ask that murder charges against a man accused of murdering his father in February in Burlington Township be dropped.
Public Defender Kelli Childress said prosecutors have committed misconduct in accessing emails, thus violating the confidential attorney-client privilege beyond the case of Daniel Rak, 31, accused of killing his father, Jeffrey.
In court filings, Childress said she assigns less-experienced attorneys to work with her on murder cases as a teaching tool and the emails contained confidential communications among six attorneys and two investigators.
"Attorney-client confidentiality is the bedrock of the justice system," read part of Childress' motion. "The only remedy for the gross due process violations committed against defendant here, is dismissal with prejudice of all pending charges against him."
According to court records, the email breach occurred as part of pretrial discovery in which prosecutors must turn over information regarding a case to defense attorneys. Childress submitted a subpoena in August seeking any and all incoming email, texts, voicemails and other communications from the sheriff's department and any other party related to the investigation into Jeffrey Rak's death.
Assistant State's Attorney Deborah Lang, who was representing the sheriff's department, objected to Childress' subpoena, saying it was "overbroad" and could produce a pile of documents eight to nine inches in height, according to court transcripts.
Childress and Lang argued their positions before Judge D.J. Tegeler in late September, and Tegeler ruled Childress was entitled to witness statements and communications between the sheriff's department and prosecutors if they were not related to trial strategy, records show. About two weeks later, Childress emailed Lang about receiving a stack of documents that was only about two inches in height.
Lang responded that she asked the county's Information Technology Department to pull all emails by searching under "Jeffrey Rak" and by Daniel Rak's case number; Lang separated out irrelevant information, such as jail security records.
"Did you receive emails generated in my office pertaining to Rak?" Childress asked in an email included in the court file as an exhibit.
Lang replied: "IT was not able to limit the scope of that request by department and I was surprised that I did receive PD emails. However I recognized that these were confidential and privileged. All PD emails were then immediately deleted without being opened or viewed." Lang later submitted a sworn statement to Tegeler restating that she didn't view or share any of the public defender's office's emails.
Childress' motion also argued the state's attorney's office has made similar email requests more than 200 times since 2013 and was "consciously aware of the breadth of the results" of those requests.
State's Attorney Joe McMahon's office Monday declined to comment, saying it doesn't make extrajudicial statements outside of court and will respond accordingly.
Rak's case is next due in court Wednesday. It was not known if attorneys were going to argue Childress' motion then or set another date and time to argue it.
Rak faces between 20 and 60 years in prison with no chance of early release if convicted of murder.
He has been held at the Kane County jail on $950,000 bail since his June arrest.