Berlin on why he dropped ex-Schaumburg cop's case: Informant was under investigation
DuPage County State's Attorney Robert Berlin explained Tuesday night why all charges were suddenly dropped against a former Schaumburg cop accused of running a drug-dealing operation with two fellow officers: A key informant was under criminal investigation.
The case against former tactical officer John Cichy, 35, relied heavily on the testimony of an informant who witnessed the essential elements of Cichy's offenses, Berlin said in a long statement he released Tuesday evening. The day before the trial was to start last week, the DuPage prosecutors learned of criminal activity by the informant that had not been disclosed, Berlin said.
"While a former member of my office was made aware of an ongoing investigation regarding the informant's criminal activities, that information was not forwarded to the trial team," Berlin wrote. "This evidence seriously compromised the credibility of the informant witness in this case."
Besides the new information damaging his witness's credibility, "the accused has a constitutional right to the timely disclosure of exculpatory evidence," Berlin said. Furthermore, the other two officers were not cooperating in the case against Cichy, he said.
Cichy was arrested in January 2013 along with fellow former officers Matthew Hudak, now 34, and Terrance O'Brien, now 51, and accused of forcing an informant to sell narcotics the officers had confiscated. Hudak and O'Brien pleaded guilty nearly four years ago and were sentenced to prison.
After Cichy's charges were dropped with little explanation last week, the lawyers for Hudak and O'Brien were left asking what evidence got Cichy off and if that evidence would help their clients. Berlin said in his statement Tuesday that it is different for Cichy.
"The testimony of an informant was an essential component in the case of People v. John Cichy," Berlin wrote. "Unlike some cases where the information gained from a confidential informant leads to the acquisition of independently admissible evidence, in this case the informant was 'transactional,' meaning he was a material witness to the essential elements of the offenses. As such, his was paramount to prove defendant Cichy guilty beyond a reasonable doubt. Unlike the cases against Hudak and O'Brien, who both made detailed statements admitting their involvement in their crimes, Cichy did not confess," Berlin said.
"In addition, although co-defendant Terrance O'Brien was required to testify truthfully as part of his plea agreement, O'Brien refused to speak with prosecutors about his testimony," Berlin wrote. "Thus, the prosecutors had no idea what this witness was going to testify to. Additionally, Hudak, who was not required to testify as part of his plea, refused to cooperate in the case against John Cichy.
"It was my opinion, based on more than 30 years of prosecuting cases, that with such a seriously compromised transactional informant witness and co-defendants who refused to speak with the prosecutors about their testimony, the State's case against John Cichy could not go forward," Berlin wrote.
Berlin said he disclosed the new evidence about the informant to Cichy's attorney and, "while not required to do so," disclosed it to attorneys for O'Brien and Hudak as well. He said an Illinois Supreme Court rule prevented him from disclosing specifics of the new evidence other than to the attorneys.
Attorneys for Hudak and O'Brien told the Daily Herald Tuesday night they'd just received the voluminous materials and were not in a position to comment yet. Cichy's attorney, Jay Fuller, was not available for comment.
Thomas Glasgow, who represents Hudak, and Paul DeLuca, who intends to represent O'Brien, had said last week they wanted to know what evidence changed that led Berlin to drop all the charges against Cichy five years after the case began.
"If there's something there now that they've learned that could affect us, I think we're entitled to at least know it and see if it does have an effect," DeLuca said at the time. And Glasgow said: "(Hudak) reminded me that he pleaded guilty based on the fact that he presumed the evidence against him was solid and that the state had made a representation both to us and to the people that the evidence they were utilizing against Hudak and O'Brien was credible."
But Berlin wrote Tuesday, "The late disclosure of information relating to the informant witness in John Cichy's case has no legal bearing on the pleas of guilty and sentences of Terrance O'Brien and Matthew Hudak."
The three officers all were charged with drug crimes after an investigation that began on Jan. 2, 2013, when police found about 9 ounces of cocaine in a Carol Stream storage unit. Their search led them to a former police informant who said he'd been helping three Schaumburg officers deal marijuana and cocaine skimmed from busted drug dealers.
During the next two weeks, prosecutors said, investigators captured the officers, including Cichy, on video and audio surveillance as they made plans and carried out drug deals, often in police vehicles and while wearing their service weapons. Prosecutors said the officers then split the cash from the drug sales.
O'Brien pleaded guilty in March 2014 to unlawful delivery of a controlled substance, official misconduct, burglary and armed violence. The unlawful delivery and misconduct sentences will run concurrently with the burglary and armed violence sentences. He is serving 24 years but could be released after 12.
Hudak pleaded guilty to nearly identical charges in April 2014 and is serving a 26-year sentence. He could be released after 13 years.
Berlin said there was a breakdown in the flow of information in his office regarding the informant who was crucial to Cichy's case. He said he will review what happened and make changes.
"It is my intention that by conducting this review and making the necessary changes to the policies and protocols already in place, we can prevent a situation such as what occurred in this case from happening again in future cases," Berlin wrote.
• Daily Herald staff writer Justin Kmitch contributed to this report.