Judge's attorney: Yes, he fired gun, but did he break any law?
The trial for DuPage County Judge Patrick O'Shea, charged with reckless misconduct after authorities said he fired his gun inside his Wheaton apartment, got off to an unusual start Tuesday afternoon in Kane County.
In an almost unprecedented move, O'Shea's defense attorney Terry Ekl immediately stipulated to the entirety of the prosecutors' evidence against O'Shea. Instead, he questioned whether O'Shea's firing of his legally owned gun broke any laws at all. "The evidence is not in dispute," he said; the question is whether it could be proven that anyone was in danger.
The complaint against O'Shea, 67, stems from Sept. 15, when authorities say he fired a bullet through a common wall in his Wheaton apartment. His neighbors later found a bullet in their living room.
The complaint says O'Shea "pulled the trigger without first determining that the firearm was not loaded, causing the firearm to discharge, causing a bullet to enter the living area of the adjoining apartment."
A neighbor noticed a hole in the west wall of her living room after returning home from work about 4 p.m. Sept. 15 and reported it to the apartment complex's management office, according to a Wheaton police report obtained by the Daily Herald through a Freedom of Information Act request.
On Sept. 24, the neighbors told police they found what appeared to be a spent bullet on their living room floor. They turned over the bullet to police, along with photographs they had taken of their damaged wall.
Police reports say O'Shea gave property managers and police at least three excuses for the hole, including that he accidentally put a screwdriver through the wall while hanging a mirror and that his son accidentally caused the hole while using a pneumatic nail gun.
Special Prosecutor Dave Neal, of the Illinois Office of the State's Attorney Appellate Prosecutor, said those statements show O'Shea's "consciousness of guilt" and asked Judge Keith Johnson to focus on them.
"Even after having two weeks to think about what happened, Judge O'Shea still gave false stories to police," Neal said. "Judge O'Shea even said maybe his son did it."
Ekl said the lies told to police and the building staff are unrelated to the evidence.
"The evidence is not in dispute," Ekl said. "My client clearly engaged in negligence when the gun went off and he made inconsistent statements. But that does not move the ball downfield and get (prosecutors) any closer to proving recklessness."
Ekl said the mere fact that no evidence has been presented that anyone was in the neighboring apartment when the bullet went through the wall prohibits prosecutors from proving O'Shea endangered the safety of another person, one of the key factors in proving reckless misconduct.
Neal, however, argued that O'Shea was reckless the moment he raised his Smith and Wesson revolver to approximately eye-level and pointed the loaded gun at the mirror, whether anyone was on the other side of the wall or not.
Neal likened the situation to someone firing a gun from one hotel room to the next, not knowing if anyone was in the adjoining room.
"The state's position is that's reckless behavior," Neal said. "Judge O'Shea was reckless when he didn't open the revolver's chamber to confirm it was unloaded. Judge O'Shea was reckless when he pointed the gun at the mirror. And Judge O'Shea was reckless when he pulled the trigger. The act of pulling the trigger is not accidental."
After brief argument, Ekl asked Johnson for a direct finding of not guilty before the trial continued.
Johnson said he would take the evidence and some case law presented by both sides under advisement and set the ruling on Ekl's motion for 1 p.m. March 2 in Kane County Branch Court.
"I think there's a total lack of proof in terms of at least two elements of the offense and I firmly suspect the judge will enter a directed finding of not guilty," Ekl said outside court. "They have to prove there was an endangerment to an actual person and there was no evidence there was anybody even in the building, so they failed there. The accidental or negligent discharge of a gun is not reckless, and the facts belie anything else. Does anybody really think that he consciously made a decision to pull the trigger into his mirror?"
As the case moves forward, O'Shea remains stripped of his judicial duties.