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A Sangamon County
public official gets caught in a cocaine scandal. The state’s
attorney can’t handle such a high-profile case himself: No matter
what the legal outcome, critics will claim that he gave his buddy some kind
of sweet deal. So the state’s attorney pitches this hot potato to
somebody else: Special Prosecutor Charles Zalar. Sound familiar? This scenario first played out way
back in 1989, when then-Associate Circuit Judge Philip Schickedanz crashed
his Pontiac Firebird into a fence near the VFW Hall on Old Jacksonville
Road. Law-enforcement officers discovered that His Honor was not only drunk
(more than twice the legal limit, in fact) but also in possession of
two-tenths of a gram of cocaine. Schickedanz resigned his bench and pleaded guilty. He
served his sentence, completed chemical-dependency treatment, and started
working as a private-practice defense attorney. His problems with drugs and
alcohol, however, returned to haunt him, eventually resulting in the
suspension of his law license. Schickedanz died of natural causes in 2006. But despite his personal tragedies, the former judge
left an indelible mark on Illinois justice. His crime was one of two cases
that led to the creation of a special-prosecution unit at the Office of the
State’s Attorneys Appellate Prosecutor — a squad of five
seasoned attorneys, supervised by Zalar, who travel the state, taking the
tar babies no one else wants to touch. In less populous southern counties, a special prosecutor might ride
in to second-chair for the local state’s attorney confronting his or
her first murder trial. In Sangamon County, where prosecutors aren’t
flustered by felonies, the SAAP workload consists mainly of piddling cases
called “conflicts” — mostly misdemeanors for which
Zalar’s presence is needed not because of the complexity of the crime
but rather because of the person accused of committing it. Illinois Times obtained
a list of cases referred to the SAAP by Sangamon County State’s
Attorney John Schmidt over the past decade. It contains a couple of
postconviction appeals and a handful of high-profile investigations (the
cocaine ring, allegations against two Springfield police detectives, the
Child Advocacy Center executive accused of theft and forgery, another
county official charged with shoplifting), but the rest fall into the fuzzy
realm where some lowly assistant recognized a name and realized that the
case had the potential to put the office in a pickle. There are names of otherwise anonymous courthouse
clerks and secretaries, their spouses, offspring, and significant others,
whose drunken-driving arrests, property crimes, and petty criminal
misadventures got outsourced to the SAAP. Then there are names that would
raise eyebrows outside the courthouse — Sangamon County Board
members, park-board members, a few law-enforcement officers, and immediate
family members of at least three different circuit-court judges. More like a who’s-who than a whodunit, this
list suggests that the term “special prosecutor” is short for
“prosecutor of people who have special connections.” But just
because their cases got handed to a special prosecutor doesn’t mean
that these people got special treatment.
Like the horseshoe
sandwich or the foodless faux fundraiser, this statewide
special-prosecution unit is an invention unique to Illinois. In other
states, conflict cases are typically farmed out to a rotating lineup of
assistant prosecutors in neighboring jurisdictions or to an assistant in
the state attorney general’s office. Here, most conflicts get sent to
the SAAP — with the approval of both the judge and the state attorney
general. Confused? You’re in good company. “A lot of the judges think we’re
assistant attorney generals. I mean, I’ve done cases in counties I
can’t tell you how long where the judge thinks that I’m an
assistant AG. They’ve never heard of us,” Zalar says, “or
they’ve heard of the State’s Attorneys Appellate Prosecutor but
they don’t realize we work for SAAP. I think. I don’t know.
It’s either that or they have brain farts or something.”
What special prosecutors do is no less confounding.
The word “conflict” doesn’t appear in the SAAP’s
enabling statute, and even if it did the definition would be nebulous. There are “true conflicts” or
“conflicts per se,” which arise when a public defender or
popular defense attorney gets elected or appointed state’s attorney,
pitting the new prosecutor against his or her own former clients. Both the
SAAP and the attorney general’s office have handled hundreds of these
conflicts in rural counties such as Knox, Lee, and Fayette.
Less obvious, but no less plentiful, are cases that
might carry a whiff of conflict, such as when a state’s attorney must
charge a personal friend, relative, employee, or colleague. Though these
cases bear just the appearance of impropriety, Zalar (the name rhymes with
“dollar”) says that they dominate his workload. “Let’s say one of the state’s
attorney’s relatives gets accused of something. It’s going to
look like heck for him to prosecute it,” he says. “He may give
that person the same deal that anybody else would get, but simply because
it’s his relative [people] are going to say, ‘Oh, he got a
special deal!’
“Joe Aiello is just an example. He’s a
Republican county official,” Zalar says, referring to the Sangamon
County clerk. “If John Schmidt would’ve tried to prosecute him,
anything he did would’ve been wrong, from the public’s
perspective, regardless of whether it was true. The appearance is
frequently more important than the reality.”
Aiello is just one of an
embarrassingly long list of county employees whose names surfaced during a
federal cocaine investigation that occupied the attention of local media
for much of 2006. Now that the investigation seems to be winding down,
cynical callers on radio talk shows, anonymous commentators on newspaper
Web sites, and of course Ron Stradt, a Democrat campaigning for
Schmidt’s job as state’s attorney, are asking why no charges
were filed against anybody who had access to the staff elevators at the
courthouse. Little-known fact: Zalar did prosecute Aiello, in
February 2006, just as the cocaine scandal was hitting the news. The case
simply never hit the mainstream media — probably because it involved
a mere traffic violation: exceeding the speed limit by 11 to 14 miles per
hour in a school zone. (Aiello had to pay a $200 fine.) You know you’re special when Zalar gets
appointed to prosecute your speeding ticket. He doesn’t do many
(counting Aiello, only three in the past 10 years), although most of the
cases that fall into his lap are, by his own description, “Mickey
Mouse little things that are not very time-consuming.”
Zalar has prosecuted Schmidt’s assistant
prosecutors, such as Dwayne Gab, who caught a 30-day supervision for
failure to reduce speed, and Chad Turner, who apparently doesn’t
believe in carrying his insurance card or vehicle registration, obeying the
speed limit, using his turn signal, or wearing his seat belt (his charges
before 2003 were not sent to Zalar). Some of the cases Schmidt gave Zalar
hit close to home: the 2003 driving-under-the-influence charge against the
ex-girlfriend of his then-first-assistant, Steve Weinhoeft; two shoplifting
cases against the former director of the Sangamon County victim-witness
program, Nancy McVey; and multiple charges against his own cousins Paul and
Christian Schmidt, affectionately known around the state’s
attorney’s office as “the battling Schmidt brothers.”
Zalar has prosecuted a Secretary of State cop for
public indecency, a judge’s son for domestic battery, another
judge’s wife for a fender-bender, a former county board member for
possession of a controlled substance, a former assistant prosecutor for
improper turn signal, the son of an SPD cop for criminal damage to
property, and DUIs against so many well-connected folk, you’d think
he had personally set up a sobriety checkpoint at the exit of a golf outing:
County Board members Clyde Bunch, whose 1998 case was dismissed in
exchange for a guilty plea on improper turn signal; then-Springfield Park
District Board member Frank Lesko, whose 2004 case resulted in a $795 fine
and a year under supervision; Robert Guy III, an usher at Schmidt’s wedding (his case was
dismissed); Beth Maurer, wife of former attorney John Maurer (she got 18 months of court supervision and paid $785 in
fines); and Nick Madonia, son of the late Ald. Tom Madonia and brother of
former assistant prosecutor John “Mo” Madonia (Nick pleaded
guilty to a lesser charge and paid $300 in fines). Looking for a pattern here? Don’t bother. Even
if it were possible to determine how close to the trunk of a family tree a
defendant needs to be to qualify as a “conflict,” there’s
another, more mysterious calculus after that, because some people
constitute a conflict for certain crimes at certain times, but not at other
times or for different charges. For example, when Beth Maurer was charged with DUI in
2002, her case was handed over to Zalar. She paid the customary fine, but
got 18 months of court supervision — about six months longer than the
average. When she got another DUI, in 2005, the case was dismissed by
Schmidt’s office. The difference may have hinged on her
husband’s position; by 2005 he was long gone from Schmidt’s
office and into his own private practice.
For a man charged with
the thankless task of handling everyone else’s no-win cases, Zalar
has a remarkably healthy sense of humor. He joined the SAAP in 1988 after
having served three terms as state’s attorney in Grundy County
because, he says, around age 40, he realized he didn’t want to depend
on voters for his livelihood. Because his team of special prosecutors is made up of
other former state’s attorneys — some of whom landed at the
SAAP after losing an election — they have been nicknamed “the
Home for Wayward Prosecutors.” Special Prosecutor Michael Vujovich,
for example, was in charge of felony cases at the Sangamon County
state’s attorney’s office until a 1998 Illinois Supreme Court
decision freed a murder suspect because Vujovich hadn’t provided a
speedy trial. Former Morgan County State’s Attorney Charles Colburn,
whom Zalar calls “as competent a medium- to small-county prosecutor
as you’re going to run into,” joined the SAAP in 2004 after he
ran for judge and lost. Tim Huyett, the on-again, off-again Logan County
state’s attorney, joined the SAAP special-prosecution unit in 1996,
left when he was reelected in 2000, and is bound to return to the SAAP
later this year, having lost in the primary election for state’s
attorney. They’re each paid $108,000 to $120,000 per year, according
to assistant director Patrick Delfino. Zalar’s cell-phone ringtone is Franz von
Suppe’s “Light Cavalry Overture,” set at maximum volume
because at age 61, he says, “I can’t hear squat.” He
plans to stay with the SAAP another six years, partly because he enjoys his
job and partly because he enjoys the salary. “The state pension
system sucks,” he says, “and you can quote me on that.”
By all accounts, he and this job are perfectly suited
for each other, because, as one attorney puts it, Zalar has so little fire
in the belly. His political affiliation, if he has one, is a mystery to
every attorney we contacted, even one whose in-laws play bridge weekly with
the man. “He does not go out and seek complicated cases;
he doesn’t go out and seek political cases. He is happiest when
he’s got a cup of coffee and a case that nobody’s paying
attention to,” one attorney says. “But that’s a good
thing, because you don’t want somebody in that job with the wrong
motivation.”
How he gets cases is pretty much a matter of whim to
the cast of courthouse observers, including Zalar. In Sangamon County, for
example, traffic violations are processed by the newest, lowest-ranking
assistant state’s attorneys — typically kids fresh out of law
school who have so many tickets to read in a day, they focus on the charges
and the facts instead of names. Even if they do notice names, they may not
be familiar enough with the local power structure to flag special cases to
go to the SAAP. The way Zalar tells it, all he knows is that he has
virtually no control over the situation. “I don’t make those
decisions,” he says. “I get an order saying,
‘You’re appointed — Tag! You’re it! — the
next court date is such-and-such.’ ”
Attorneys on both sides
of the legal industry — prosecutors and defense attorneys —
find the special-prosecutor situation mysterious. “There really isn’t a set formula,”
says defense attorney Adam Giganti. “If you look at all the cases,
some of them are blatantly obvious that they should be referred out.
Others, I think, it’s more a situation of caution.”
John Sharp, who specializes in defending DUIs, says
defense attorneys sometimes ask each other in the courthouse corridors why
Zalar showed up to prosecute a certain case. “There really is no rhyme or reason for how
cases are assigned,” Sharp says. The only effect a special prosecutor
truly has on the case might be just to make the defense attorney sweat.
“When it gets assigned to a special prosecutor, you just are
cognizant that, for whatever reason, the case may draw more attention. It
puts a higher intensity level on it,” Sharp says. Sometimes the conflict isn’t a matter of
favoritism but the opposite. Mo Madonia, now in private practice, was still
a young assistant state’s attorney when he became the victim of a
crime. Two teenagers broke into his car, stole everything valuable, then
used the garage-door opener to try to get into his house. When Madonia
flipped on a light, he scared the two would-be burglars away. They were
prosecuted by Zalar’s office, not Schmidt’s, to avoid any
chance that they would get a tougher deal just because they had victimized
one of the office’s own. As it turned out, Madonia says, Zalar gave the kids
the exact deal he had in mind — pleaded down to a misdemeanor,
because the defendants had no prior criminal records. “I’m a big proponent of ‘one bite
at the apple,’ especially when the stakes are so high,” Madonia
says. “It was handled exactly as I would’ve handled it myself
if I had been the prosecutor.”
The way Zalar tells it, that’s his job in a
nutshell: His aim is to prosecute any Davlin, Libri, or Aiello the same way
he would any Tom, Dick or Harry. He says one of the most difficult parts of
his job is determining precisely what sentences John Q. Public would get
for various offenses in various counties, because each jurisdiction has its
own customary standards, especially on DUIs. “All I’m trying to
do is to determine what a fair disposition is,” he says. If his batting average, which he doesn’t track,
looks less than stellar, it’s because he can’t drop certain
cases, no matter how weak, because of the name on the charging form. This
predicament has earned him the sympathy of some defense attorneys.
“To be honest with you, I wouldn’t particularly want to do
Chuck’s job,” Giganti says. “Just because a case is
referred to a special prosecutor doesn’t make the facts stronger or
weaker; the facts are what they are. It may have been a very bad case from
the get-go, and referring it to a special prosecutor doesn’t change
that.”
In some of these cases,
SAAP special prosecutors have been criticized for being overzealous. Two of
them — David Rands and Edwin Parkinson — were featured in a
2004 State Journal-Register editorial titled “State should rein in bad
prosecutors,” which focused on their stubborn prosecutions of Randy
Steidl and Julie Rea-Harper, two accused murderers who have both now been
set free. These accusations are balanced by charges that the
unit does just the opposite, going too softly whenever special people are
accused of smaller crimes, as in the recent “cocaine ring”
cases and the charges against former Springfield police Det. Paul
Carpenter. But other attorneys familiar with these cases
disagree and say that Zalar juggled these hot potatoes just fine. “I think he made the right decision,”
says Sangamon County Chief Public Defender Brian Otwell, referring to
Zalar’s decision to not charge any of the current or former
courthouse personnel associated with the drug scandal. “No prosecutor
that I know of would prosecute those cases. They didn’t have any
evidence. They didn’t have any dope. You don’t prosecute a
possession case when the only evidence you have is the word of a convicted
felon,” he says. “The only criticism anyone could make might be
the length of time it took.”
As for the allegations against Carpenter and his
partner, former Det. Jim Graham, Zalar filed felony charges of wire fraud
and official misconduct against Carpenter, but the case was later dismissed
by the court. “The whole thing was very troubling,”
Zalar admits. “There were some incidents — I’m thinking
of one back in 1999 — where I would’ve thought the U.S.
attorney’s office might have indicted [Carpenter and Graham] but they
chose not to — and there’s nothing I can do: The statute of
limitations had run.”
One attorney says Zalar has to take the files
“with flies on them — the real stinkers.”
Zalar doesn’t even ask which attorney made that
comment. “Funny,” he says. “That
person’s been reading my mind!”
Contact Dusty Rhodes at drhodes@illinoistimes.com.
This article appears in Jul 3-9, 2008.
