A judge has raised doubts about the appointment of a special prosecutor in two cases involving a former Chicago police detective who has been accused of misconduct, requesting a representative of Cook County State’s Attorney Eileen O’Neill Burke to come to court and explain the office’s position.
The matter is among a number of special prosecutor appointments that have come under scrutiny as defense attorneys raise concerns about the potentially lucrative arrangements, including in a case that was reviewed by the Illinois Supreme Court last year. These appointments are made by judges when the state’s attorney has a conflict of interest or appearance of impropriety.
Will County Judge Jessica Colon-Sayre is hearing some cases involving former CPD Detective Kriston Kato in lieu of the Cook County judiciary because Kato is married to a sitting Cook County judge, Mary Margaret Brosnahan. Former State’s Attorney Kim Foxx previously followed suit and recused her office, citing an appearance of impropriety because her prosecutors appeared before Brosnahan every day.
But in two post-conviction cases involving allegations against Kato, Maria McCarthy, the special prosecutor appointed to replace Foxx’s office, now contracts with Burke to prosecute other cases. And Burke’s office is now also handling some cases related to Kato, McCarthy said.
“I have a special prosecutor that’s incurring fees. Why? Why are we doing this?” Colon-Sayre asked during a hearing in Joliet on Monday. “The expense of it and if the appearance of impropriety doesn’t exist anymore because State’s Attorney Burke is doing these cases, why do I have a special prosecutor?”
Colon-Sayre said she feels “stuck” on the issue and requested someone from Burke’s office to appear in court to explain whether the office still believes a special prosecutor appointment is necessary in these cases, given that her office’s stance appears to differ from Foxx’s.
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In a statement, the Cook County state’s attorney’s office said: “If requested by the court, a representative of the CCSAO will appear to respond to any questions related to this matter. The original appointment of a special prosecutor in this case was based on a recusal by the previous administration.”
The two defendants are Kevin Murray and Devon Daniels, who are convicted of murder, but have maintained their innocence and accused Kato of torturing them. The Illinois Torture Inquiry and Relief Commission found their claims credible and referred their cases back to Cook County for evidentiary hearings.
The hearings have been delayed by litigation, though, including over who should prosecute the cases going forward.
Attorneys for Murray and Daniels have challenged McCarthy’s appointment as special prosecutor, even as McCarthy has argued that an Illinois Supreme Court decision from last year found that special prosecutors cannot be removed unless an actual conflict of interest can be established.
Special prosecutors who have had their appointments challenged have accused defense attorneys of “prosecutor shopping” to try to pick a more favorable opponent.
During Monday’s hearing, Daniels’ attorney, Jennifer Bonjean, noted that nothing would preclude McCarthy from being appointed by Burke to handle the case as a representative of her office, but she questioned the need for a special prosecutor to stand in for Burke, given that Burke’s office is prosecuting other Kato-related cases.
“Why does the taxpayer have to foot the bill?” Bonjean said.