The DuPage County Board voted Tuesday to oppose spending taxpayer dollars upfront for the defense of seven current and former law enforcement officials facing trial on criminal misconduct charges.
A majority of board members agreed that such use of public funds was improper and directed their newly appointed special counsel to voice opposition at a court hearing scheduled for Wednesday.
The vote was a slap at DuPage State’s Atty. Joseph Birkett, who had advised board members in January that the county likely would be obligated to pay legal fees for the four sheriff’s deputies and three former prosecutors indicted on charges that they fabricated evidence against one of the men wrongfully convicted in the 1983 slaying of 10-year-old Jeanine Nicarico.
Lawyers for the seven officials have asked to be appointed special state’s attorneys, which would force the county–and in effect, DuPage taxpayers–to pay defense costs that some fear could amount to millions of dollars.
Despite Tuesday’s vote, the decision on the issue will be made not by the County Board but rather by the courts–either by Jo Daviess County Judge William Kelly, assigned by the Illinois Supreme Court to preside over the trial of the seven, or by an appellate panel.
The board’s objections may end up as little more than a stray comma in thousands of pages of legal documents.
Board members met in closed session for slightly more than an hour with Glen Ellyn lawyer William E. Jegen, who was appointed last week as a special counsel to advise the board on the issue of legal fees.
Afterwards, the board approved without debate, by a vote of 16-1, a resolution that reads in part:
“. . . the County Board has determined that it is improper to advance public funds to provide for the defense of public officials who are charged with violating state criminal statutes involving misconduct in office. . . .”
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Left unresolved at the moment was whether the board would agree to reimburse the officials for the cost of their defense if they eventually are acquitted.
The resolution says that question was “not now ripe for consideration.”
Robert Heap (R-Naperville) was the only board member to vote against the resolution.
Board member Robert Schroeder (R-Naperville) voiced a public decision to abstain. Six other board members were absent from Tuesday’s meeting or chose not to vote without offering any explanation.
The debate has been uncomfortable for many board members, and emotional for some, because one of the indicted sheriff’s deputies is the husband of board member Linda Kurzawa (R-Winfield). Kurzawa did not participate in Tuesday’s discussion.
“It’s difficult for some to take a public position here,” observed County Board Chairman Gayle Franzen, who had pushed for the appointment of a special counsel to represent the board’s interests.
During the closed-door session, Jegen reportedly walked board members through their legal options. There also reportedly were pleas from some to underwrite defense costs out of sympathy for the sheriff’s deputies and former prosecutors.
At Wednesday’s court hearing, Jegen is expected to ask Kelly for time to file written arguments outlining the board’s objections.
Defense lawyers have contended that the debate over legal fees is a sideshow to the issue of guilt or innocence of the seven.
“It has been a distraction and has been time-consuming,” said lawyer Terry Ekl, who represents former prosecutor Thomas Knight, one of those indicted in December by a special grand jury.
Ekl argues that county funding is important to the defense because special prosecutor William Kunkle Jr.–who is being paid by the county–has access to nearly unlimited resources.
Though he had agreed last week to the appointment of Jegen as special counsel, Birkett sent a letter Monday to board members in an apparent effort to have the last word on the matter. In the letter, Birkett defended the positions he has taken and reiterated his opposition to legal arguments made by lawyers for Franzen.
Birkett and others have contended it is in the county’s best interests to pay the legal fees for the seven because DuPage, they say, faces a potentially huge liability in pending civil lawsuits if any of the officials is convicted on criminal charges.