A Cook County judge could decide next month whether to appoint a special prosecutor to investigate the federal agents who carried out the aggressive deportation campaign that shook the Chicago area last fall.
Cook County Circuit Judge Erica Reddick, the presiding judge of the criminal division, listened to nearly two hours of arguments Friday at the George N. Leighton courthouse before telling the attorneys she hopes to rule during a hearing May 11.
The judge questioned lawyers on both sides of the issue but did little to tip her hand. She asked if anyone had reported alleged crimes by agents to the police, and she tried to pin down how Cook County State’s Attorney Eileen O’Neill Burke’s office sees its role in any such probe.
Yvette Loizon, the chief assistant state’s attorney for policy and external affairs, acknowledged the public outrage stemming from the campaign known as Operation Midway Blitz. But, she said, “we’ve seen what lawlessness does.”
“When we want the law to bend so that it suits us, we create problems for everybody,” Loizon said during Friday’s argument.
Locke Bowman, an attorney who represents the coalition seeking a special prosecutor, pointed to O’Neill Burke’s refusal in August to join other county officials in criticizing President Donald Trump, when the president threatened to deploy National Guard troops to Chicago.
“If she was unwilling to criticize the invasion of Cook County as it was about to happen,” Bowman asked, “what confidence can the citizens of Cook County have that now, in the aftermath, when violence has been perpetrated, when crimes have been committed, that she will be the person to step up and prosecute those who have committed crimes?”
Reddick’s ruling could be a crucial turning point in efforts to hold agents responsible for their conduct during the deportation campaign. If she were to appoint a special prosecutor, the law requires her to contact public agencies, like Attorney General Kwame Raoul’s office or other counties, to see if someone is available at no cost before appointing a private attorney.
But if she were to side with O’Neill Burke, it would seem to vindicate the top prosecutor, who has been under pressure for much of this year to hold the Midway Blitz agents accountable. Coalition attorneys say she has “abdicated her responsibility” by refusing to lead any such investigation.
But that raises questions about the discretion prosecutors have to decide which cases to pursue. There are also legal pitfalls when it comes to charging federal agents with crimes. For example, prosecuting federal agents in state court requires showing they acted unreasonably while fulfilling their duties.
Loizon on Friday called such issues “sticky wickets” and said O’Neill Burke tried to draw a “roadmap” to navigate them when she released protocols for such cases in February.
O’Neill Burke has “repeatedly denounced the deplorable conduct of the Trump administration,” Loizon insisted, and even filed an amicus brief opposing the president when he ultimately tried to follow through on his National Guard threats.
The coalition seeking a special prosecutor is made up of more than 400 members, including U.S. Reps. Jesus “Chuy” Garcia, Jonathan Jackson and Delia Ramirez, all Democrats, and former U.S. District Chief Judge Ruben Castillo, who was appointed to the bench in 1994 by President Bill Clinton.
The coalition also includes the Chicago News Guild, which represents journalists at the Chicago Sun-Times.
During Friday’s argument, Reddick asked coalition attorney Meg Gould whether individual complaints had been made to police departments about the agents’ actions. Gould told the judge she didn’t immediately have that information.
However, coalition attorney Steve Art later told reporters “we know that people have made complaints.”
The judge asked Loizon if it’s the position of O’Neill Burke’s office that it “will only investigate crimes that are brought to it” by police. Loizon told her the office shouldn’t be the “primary investigators of crimes.”
“We can assist and support law enforcement when they are investigating crimes,” Loizon said. “… Our role is to support investigations.”
She said a 2017 Illinois Supreme Court decision is “replete with statements that make it clear” that the high court was “discouraging prosecutors’ offices from being primary investigators in any case.”
The judge also heard several references to the special prosecutor appointed to handle the shooting death of Laquan McDonald by Chicago police officer Jason Van Dyke. Loizon pointed out that then-Cook County State’s Attorney Anita Alvarez voluntarily recused from that case.
A jury later found Van Dyke guilty of second-degree murder in McDonald’s death.
Bowman said Friday there are sometimes circumstances, like the McDonald case, that “flow outside of the norm” — in which police are not engaged “for whatever reason.” He said O’Neill Burke has made clear that, in the absence of a separate police investigation, “she will not act.”
Bowman concluded by invoking the October shooting of Marimar Martinez in Chicago, and the September killing of Silverio Villegas Gonzalez in Franklin Park, both at the hands of immigration authorities.
In the end, the lawyer told the judge, “it’s up to you.”
Neither the reporter nor editors who worked on this story — including some represented by the News Guild — have been involved in the litigation described in this article.