A defense attorney, whose arguments led last week to a judge striking down wiretap evidence in a major Lake County street gang racketeering case, is confident his position will be upheld by the state appellate court as well.
“Supreme courts across the country have set precedents on this,” Roberts said Wednesday of the ruling, which affirmed his motion claiming that the Lake County State’s Attorney’s Office did not properly obtain approval for telephone wiretaps used in “Operation Shut Down the Hustle.”
Lake County State’s Attorney Michael Nerheim, who announced he would appeal the ruling shortly after it was issued, said Wednesday there have been no legal precedents on the subject in Illinois.
“It comes down to interpretation of the (state) statute,” Nerheim said. “There is no case law on point in Illinois addressing this issue. We look forward to arguing the case.”
Local and federal authorities said the operation targeted high-ranking members of the 4 Corner Hustlers street gang involved in serious crimes, ranging from drug trafficking to murder.
However, with 20 of the initial 27 defendants already having pleaded guilty, and one case dismissed, only six cases remain active in pre-trial status, according to the Lake County State’s Attorney’s Office.
Nerheim said he is limited as far as what he can discuss due to the pending litigation, but said he wanted to stress that the state has not dismissed any cases against defendants in the operation due to the ruling, and does not plan to. He said even if the ruling is upheld, prosecutors have evidence outside of the recordings.
But Roberts said if such evidence exists, it is severely compromised by the ruling. He said, for example, that if investigators witnessed a drug deal set up during a taped telephone conversation, the drug deal should be suppressed as well as the conversation that led to it.
Chicago attorney Richard Dvorak, who represents James Allard, whose drug delivery and street gang criminal conspiracy case is still pending, said he also believes most of the evidence is tainted.
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Dvorak said the wiretaps in some way relate to most or all of the evidence involved in the operation, and that the situation fits a legal term known as “fruit from the poisonous tree.”
“In my opinion, all of the evidence in this case was the fruit of the poisonous tree,” he said.
Dvorak, who filed a motion similar to the one filed by Roberts, said he also believes Strickland’s ruling will be upheld, calling it, “One of the most thoughtful and well-researched opinions I’ve heard.”
Roberts said the crux of the issue is that both state and federal statutes specify that only officials “politically responsible” to residents, meaning elected officials such as local state’s attorneys, have the authority to formally request wiretaps.
“If you look at the standards on this, they are very rigorous.” Roberts said.
Two assistant state’s attorneys, sometimes accompanied by an FBI agent, made requests to local judges for approval of telephone recordings throughout the operation.
In a response to Roberts’ motion, the state’s attorney’s office argued that Nerheim had been involved in meetings outlining the investigation prior to requests being made for wiretaps, and that the state statute allows his designated assistant state’s attorneys to appear before a judge to request wiretaps on his behalf.
The motion response stated that under Illinois law, a state’s attorney may grant verbal approval to others to request such surveillance.
In his ruling, Strickland sided with Roberts’ motion to suppress “any and all” information gathered through wiretaps.
“The federal statute embodies the policy that only an official who is politically responsive to the citizens can be entrusted with the ability to authorize an application for a wiretap order,” he wrote.
The ruling also stated that applications for the wiretap orders issued in this case did not comply with state statute, and even if they did, “they would be in violation of federal law,” Strickland wrote.
If upheld before the state’s 2nd District Appellate Court, the ruling could change the complexion of at least the remaining cases stemming from the operation.
Nerheim declined to comment on whether those who pleaded guilty are affected in any way by the ruling, and Roberts said he is not sure.
At least one defendant, Desmond Washington, who has already accepted a negotiated plea deal and been sentenced, is seeking to withdraw his guilty plea. Washington’s attorney, Eric Rinehart, said he believes Strickland’s ruling will help Washington’s case, but declined to discuss further details of the case.
Washington pleaded guilty to possession of a controlled substance with intent to deliver and in exchange for the plea was sentenced to probation and time already served in Lake County Jail.
Roberts represents Gregory Harris Sr., one of the main targets if the investigation, who did not accept a plea deal and is charged with street gang criminal drug conspiracy and criminal enterprise under the Illinois Street Gang and Racketeer Influenced and Corrupt Organizations (RICO) Act.
Roberts maintains Harris is not a gang member and “was not in charge of anything.”
The late 2014 arrests in “Operation Shut Down the Hustle” capped a months-long investigation, which was conducted by local, state and federal authorities, and recovered large quantities of drugs, as well as weapons and cash, authorities said.
Nerheim, Lake County Sheriff Mark Curran and other officials announced the arrests during a press conference, and said evidence in the case includes video and audio recordings, phone taps and testimony from undercover agents who infiltrated the gang, officials said.
The arrests were coordinated between the FBI, the DEA, the Lake County Sheriff’s Office and the Mundelein, Zion and Waukegan police departments, as well as the Lake County Metropolitan Enforcement Group (MEG).
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