Charges stand in Burlington Township murder case
Daniel Rak will go on trial on charges he murdered his father despite his lawyers' emails about the case being sent to the Kane County state's attorney's office.
Judge D.J. Tegeler found Public Defender Kelli Childress did not present evidence of "outrageous conduct" on the part of prosecutors that was severe enough to significantly prejudice Rak's 6th Amendment right to a fair trial.
He denied Childress' motion to dismiss the indictments of Rak for first-degree murder and domestic battery.
Rak is accused of beating his father, Jeffrey, 58, to death at his Burlington Township home in February 2016.
Childress submitted a subpoena in August seeking all incoming email, texts, voicemails and other communications from the Kane County sheriff's department and any other party related to the investigation into Jeffrey Rak's death. Assistant State's Attorney Deb Lang of the civil division, representing the sheriff, had argued the subpoena was too broad, but Tegeler granted the subpoena.
Kane County's information technologies staff searched the county's servers and archives for items containing Rak's name or the court case number and sent the materials to Lang, who was to review them to make sure there wasn't anything in them about prosecutors' trial strategy.
Lang testified she realized some of the emails were privileged communications among attorneys in the public defender's office, and that she did not read them and instead deleted the files.
Childress argued the emails gave the state's attorney's office an unfair advantage, akin to a sports team having the opposing team's playbook.
Tegeler said he did not find the state was being vindictive in its prosecution, nor outrageous in its conduct, two legal standards for dismissing indictments.
He did, however, criticize the county's practice of having the public defender's office, the state's attorney's office and circuit court judges' email all served by the same system, servers and archives.
Tegeler did not look at the emails in question, nor the flash drive, a hard drive and a "computer box" that were submitted to him, because neither the defense nor prosecutors asked him to. They remain locked in a closet in the judges' offices, he said.
He also chided Lang for not notifying Childress or the court earlier that she had received the emails. It appeared she deleted the privileged ones within a day of receiving them, but did not tell Childress until Childress asked her a specific question about it almost two weeks later.
Rak was supposed to go on trial Monday. But Friday afternoon, Childress got a continuance so she could hire an expert to review Jeffrey Rak's medical records, and possibly to testify. Tegeler will set a new trial date May 22.