2019 IL App (1st) 173173
Ill. App. Ct.2019Background
- In June 2011 Chicago Police Officer Gildardo Sierra shot and killed Flint Farmer; Sierra fired 16 rounds and claimed he feared for his life after Flint allegedly produced a black object that was later found to be a cell phone.
- IPRA investigated, initially found the shooting justified; Cook County State’s Attorney Anita Alvarez issued a 2013 "white paper" declining charges, concluding prosecution could not disprove Sierra’s claim of reasonable belief of threat.
- IPRA reopened the investigation in 2015 and sustained two allegations, finding the last three shots unreasonable; after Kimberly Foxx became State’s Attorney, her office again declined criminal charges.
- Emmett Farmer petitioned the circuit court under 55 ILCS 5/3-9008(a-5) and (a-10) for appointment of a special prosecutor, alleging Foxx is unable to fulfill duties and has a per se conflict when prosecuting police-involved shootings (relying on prior prosecutor conduct and Foxx’s campaign statements).
- The circuit court denied the petition; the Appellate Court reviewed for abuse of discretion, considered statutory amendments to section 3-9008, and affirmed the denial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether subsection (a-5) permits appointment when prosecutor creates appearance of impropriety | Emmett: (a-5) "unable to fulfill duties" covers situations creating appearance of impropriety and thus permits special prosecutor | Foxx: (a-5) limited to physical inability (sick/absent) to perform duties | Held: (a-5) is limited to sickness/absence/physical inability; Emmett failed to show such inability |
| Whether subsection (a-10) allows appointment based on appearance of impropriety rather than an actual conflict | Emmett: Lang supports appointment to remove appearance of impropriety; Foxx’s campaign statements and history of non-prosecutions show a per se conflict | Foxx: (a-10) requires proof of an actual conflict of interest in the specific case; campaign statements and general allegations insufficient | Held: (a-10) requires proof of an actual conflict specific to the case; appearance of impropriety alone is insufficient |
| Whether campaign statements by Foxx create a binding admission of conflict | Emmett: Foxx’s pre-election statements acknowledging an inherent conflict establish actual conflict | Foxx: Statements were campaign rhetoric about predecessor and are not dispositive or binding | Held: Campaign statements are insufficient, standing alone, to prove an actual conflict |
| Whether petitioner pleaded specific facts showing Foxx was personally interested or conflicted in this case | Emmett: Relies on alleged inconsistencies in officer’s account, IPRA findings, Alvarez’s white paper, and pattern of prior non-prosecutions | Foxx: Petition lacks specific facts showing Foxx was personally interested or unable to act impartially; prosecutorial discretion must be respected | Held: Petitioner failed to plead specific, case-linked facts establishing Foxx’s actual conflict; court did not abuse discretion in denying appointment |
Key Cases Cited
- Foutch v. O’Bryant, 99 Ill. 2d 389 (Illinois 1984) (incomplete record can support summary affirmance)
- People v. Lang, 346 Ill. App. 3d 677 (Ill. App. Ct. 2004) (appointment may be required to remove appearance of impropriety in extreme, particularized facts)
- Sommer v. Goetze, 102 Ill. App. 3d 117 (Ill. App. Ct. 1981) (court may appoint special prosecutor where prosecution’s conflicting interests thwart impartial hearing)
- Environmental Protection Agency v. Pollution Control Board, 69 Ill. 2d 394 (Ill. 1977) (pre-amendment interpretation: "interested in a cause" meant private interest or being a party)
- McCall v. Devine, 334 Ill. App. 3d 192 (Ill. App. Ct. 2002) (petition must allege specific facts showing personal interest or conflict; generalized allegations against SAO insufficient)