Judge to decide if email breach negates murder charge

  • Daniel M. Rak is charged with murdering his father in Burlington Township.

    Daniel M. Rak is charged with murdering his father in Burlington Township.

  • The office of Kane County State's Attorney Joe McMahon has been accused of misconduct by Public Defender Kelli Childress over an email breach.

    The office of Kane County State's Attorney Joe McMahon has been accused of misconduct by Public Defender Kelli Childress over an email breach. Brian Hill | Staff Photographer

 
 
Posted5/4/2017 5:25 AM

A Kane County judge is mulling whether an email breach of defense team emails will result in the dismissal of murder charges against a man accused of killing his father in early 2016 in Burlington Township.

Daniel M. Rak, 31, is charged with first-degree murder in the death of his father, Jeffrey, 58, who was found dead the morning of Feb. 14, 2016, at his home on Engel Road.

 

Last fall, Public Defender Kelli Childress subpoenaed emails between law enforcement officers in the case as part of routine pretrial discovery, but the county's Information Technology Department did a search of all emails containing the name "Rak" and the case number before sending them to the state's attorney's office.

Childress has argued this action -- regardless if it was intentional or accidental -- was a violation of attorney-client privilege. Childress also argued that McMahon's office and his assistants have obstructed her in the case, thereby violating the Sixth Amendment of the U.S. Constitution, which protects the right of defendants to receive a fair and speedy trial.

Wednesday, Childress wrapped up her argument, saying her client faces irreparable harm. She equated the situation to one team spying on and downloading their opponent's playbook or strategy.

The result of the game would not be viewed as fair, just as Rak's trial would be unfair.

"The violation (of attorney-client privilege) occurred when the state's attorney's office decided they had a right to divert public defender emails in their own system," Childress said. "If you cannot state at the end of the day that the trial was fundamentally fair, you cannot let the charges proceed."

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Daniel Purdom, an attorney retained by McMahon's office because Childress argued prosecutorial misconduct in the case, countered that Childress needed to prove "egregious, intentional conduct that shocks the conscience" by prosecutors in order for the murder charges to be dismissed.

"There is not one iota of that," Purdom said, stressing that Assistant State's Attorney Deb Lang never read, copied or shared the public defender's office's emails and immediately moved them into the "delete folder."

A forensic computer expert corroborated Lang's testimony that the emails were not shared, Purdom said. "There's nothing that happened in this case at all that will deprive Mr. Rak of a fair trail," he said.

Tegeler will give his decision on May 12.

If the charges stand, Rak's jury trial is set for May 15. If convicted, he faces between 20 to 60 years in prison with no possibility of early release.

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