In a rebuff to DuPage State’s Atty. Joseph Birkett, a judge has refused to dismiss the special counsel appointed to represent the County Board in a festering dispute over the payment of legal fees for current and former law-enforcement officials facing trial on criminal-misconduct charges.
The ruling Wednesday by Winnebago County Circuit Judge Ronald Pirrello rejected Birkett’s request to terminate the appointment of Glen Ellyn lawyer William E. Jegen.
Jegen can continue to offer legal advice to the board, Pirrello ruled.
“I feel, as I did when I first considered the question, the interests of Mr. Birkett and the County Board to be potentially divergent and significantly so in the question of the payment of taxpayer dollars,” Pirrello wrote in a two-page decision. “It is important for Mr. Birkett to avoid even the appearance of impropriety.”
The ruling by Pirrello is the latest development in a controversy that has caused much anguish for DuPage politicians.
The law-enforcement community in DuPage and others have waged an intense lobbying campaign over the last year to persuade County Board members to fund the defense of four sheriff’s deputies and three former prosecutors indicted last year for their roles in the investigation and prosecution of two men who were wrongfully convicted in the 1983 murder of 10-year-old Jeanine Nicarico.
The seven are accused of fabricating evidence against Rolando Cruz, one of the men sentenced to death but later exonerated in the slaying of the Naperville girl.
At the request initially of County Board Chairman Gayle Franzen, Jegen was appointed as an independent counsel earlier this year to advise the board after Pirrello ruled that Birkett’s office could not properly represent the board’s interests on the issue of legal fees.
Franzen has said that it would be improper for taxpayers to fund the criminal-defense costs, which could amount to millions of dollars, unless the seven are acquitted.
Birkett has pressed board members to consider paying the fees upfront. He and others have argued the county needs to provide the seven with the best criminal-defense possible to protect itself from potential liability in pending federal civil-rights lawsuits that seek huge damages.
In April, County Board members voted to oppose payment of legal fees, and Jegen presented that opposition to another judge who ruled the county was not obligated to pay.
The latest dispute was triggered when board members said they were “confused” and voted to ask Jo Daviess County Circuit Judge William A. Kelly to advise whether they could pay the fees. Kelly was assigned by the state Supreme Court to preside over the trial of the seven. Pirrello was assigned to referee the dispute between Birkett’s office and the County Board.
Under an agreement between Franzen and Birkett, the request to Kelly was to be presented without legal arguments, but Jegen appeared at a court hearing at which the request was to be considered.
Birkett contended in a petition filed last month that Jegen ought to be dismissed because he acted contrary to the direction of the County Board. Birkett also argued that Jegen’s services could no longer be justified as a result of more recent court decisions in the tangled web of litigation resulting from the convictions.
But Pirrello’s ruling appears to suggest that there continues to be the potential for conflict between Birkett and the County Board.
Birkett was unavailable for comment Wednesday, though his office released a statement quoting him as saying, “I never opposed the idea of the County Board hearing the opinion of an opposing view. I do oppose any attempt to remove my voice from this debate.”
Birkett’s top aide said the state’s attorney’s office may ask Pirrello for a clarification. His ruling seems not to address the arguments made by Birkett, said John Kinsella, first assistant state’s attorney.
Jegen said he hopes that Birkett will agree that Birkett’s office is precluded from representing the board on the issue of defense fees.
“I wasn’t the one who renewed the issue,” Jegen said. “I wasn’t the one who created the need for additional legal work. . . . Unfortunately, I have to get paid for my time.”
