McCall v. Devine

• Decision Date: 30 August 2002
• Docket Number: No. 1-01-0182.,1-01-0182.
• Citation: 777 N.E.2d 405,267 Ill.Dec. 602,334 Ill. App.3d 192
• Parties: Patsy McCALL, Petitioner-Appellant, v. Richard A. DEVINE, Cook County State's Attorney, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

777 N.E.2d 405

334 Ill. App.3d 192

267 Ill.Dec. 602

Patsy McCALL, Petitioner-Appellant, v. Richard A. DEVINE, Cook County State's Attorney, Respondent-Appellee.

No. 1-01-0182.

Appellate Court of Illinois, First District, Fifth Division.

August 30, 2002.

Andre Grant and Lewis Meyers (Andre Grant and Lewis Meyers, of counsel), and R. Eugene Pincham (R. Eugene Pincham, of counsel), Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Assistant State's Attorneys Renee Goldfarb and Veronica Calderon, Chicago, for Appellee.

Justice QUINN delivered the opinion of the court:

On February 8, 2000, petitioner, Patsy McCall, filed a petition for the appointment of a special prosecutor to investigate and prosecute unknown Chicago police officers for the fatal shooting death of her son, Reginald Cole. Cole was in the custody of the Chicago police department when the shooting occurred. Cook County State's Attorney Richard A. Devine filed a motion for leave to intervene, which was granted by the trial court over McCall's objections. Devine then filed a motion for judgment on the pleadings. Following argument by the parties, the trial court entered an 18-page order granting Devine's motion and ordering judgment on the pleadings and dismissed the petition for appointment of a special prosecutor.

McCall now appeals. On appeal, McCall argues that the trial court erroneously granted the motion for judgment on the pleadings where the petition established a cause of action for the appointment of a special prosecutor. McCall argues that Devine's relationship with the Chicago police department has created a conflict of interest that prohibits Devine from conducting a fair and impartial investigation and prosecution of the officers.

For the reasons that follow, we affirm.

I. BACKGROUND

On October 30, 1999, Reginald Cole was transferred from the Illinois River Correctional Facility in Canton, Illinois, to the Chicago police Area One facility located at 5101 South Wentworth Avenue in Chicago. At that time, Cole was in the custody of the Illinois Department of Corrections serving a 10-year sentence for armed robbery. Cole was transported to Area One to be questioned in connection with an ongoing homicide investigation. Within hours of his arrival, Cole died as a result of gunshot wounds suffered while in the custody of Chicago police officers at Area One. Both the Cook County State's Attorney's office and the Cook County medical examiner's office began investigating the incident on the evening Cole died.

On October 31, 1999, the medical examiner issued a report which stated that Cole sustained three gunshot wounds: one to the abdomen, one to the right arm and one to the mouth. The report concluded that Cole died as a result of a self-inflicted gunshot wound to the mouth. The State's Attorney's office similarly concluded that Cole's death was not a homicide and determined that no charges would be filed against any officers involved in the incident.

On February 8, 2000, Patsy McCall, Cole's mother, filed a petition for the appointment of a special prosecutor to investigate and criminally prosecute the unknown officers involved in the shooting death of her son. McCall's claim for relief is based upon section 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2000)) which provides:

"Whenever the State's [A]ttorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding * * *" 55 ILCS 5/3-9008 (West 2000).

McCall's petition alleges that there are gross conflicts of interest in the State's Attorney investigating and prosecuting officers in the Chicago police department for Cole's death. Specifically, McCall alleged that the State's Attorney and the Chicago police department have a relationship of "cordiality, compatibility, support, [and] fidelity" and that this relationship makes it impossible for the State's Attorney's office to conduct an "independent, unbiased, honest and impartial investigation into the shooting death of Reginald Cole." The petition stated that this relationship has formed as a result of the fact that "well over 90% of the criminal cases prosecuted by the Cook County State's Attorney's office have been investigated and brought to the Cook County State's Attorney's office by Chicago police officers."

Additionally, McCall's petition alleged that certain unknown Chicago police officers, assistant State's Attorneys and medical examiners conspired to conceal, distort and fabricate the circumstances surrounding Cole's death. In support of that claim, McCall asserts that Cook County assistant State's Attorneys and Cook County medical examiners are not normally called to the scene of a homicide to investigate, and it is not their duty or responsibility to investigate the facts and circumstances surrounding a homicide.

The petition also states that representatives of the Chicago police department publicly provided false and contradictory factual versions of these circumstances. In support of that assertion, McCall cites to five Chicago Tribune articles and commentaries. The alleged versions were summarized by the trial court as follows:

"In the first version, set forth in the commentary of Salim Muwakkil, November 8, 1999, the writer notes that first accounts of the incident reported `that the 38 year old Cole was shot by officers when he allegedly attacked them during a mysterious October 30 interrogation at the Wentworth Headquarters.'

In the second version, reported in the Chicago Tribune by Lisa Donovan and Jeffrey Bliss, October 31, 1999, the writers state that Cole `was shot and killed inside an interview room ... after he allegedly attacked a detective, that Cole was shot in the head and the abdomen... there was a struggle and the offender was shot.'

In the third version, which lacks attribution, Cole grabbed a metal paper spindle and attacked the detective, that Cole grabbed the detective's gun from his holster and then shot at the detective as he was fleeing from the room, that two other detectives who witnessed the incident returned the fire, striking Cole and that Cole then turned the gun on himself and inflicted one gunshot wound to the head area.

In the fourth version reported in the Chicago Tribune by Margaret O'Brien and Naomi Dillon, November 1, 1999, according to Wentworth Area Commander Frank Trigg: `Cole grabbed a seven-inch paper spike ... and lunged at the detective ... that while the two were struggling, Cole grabbed the detective's gun ripping the holster strap in the process ... Cole then fired at the officer but missed. A second detective outside the office heard the shot, came to the door and fired at Cole, who was crouched against a cabinet and pointing a gun at the one door to the room.... After the shot missed Cole, the second officer took cover behind the door frame as the first officer took cover on the floor. A third shot was then heard ... that police believe Cole put the gun in his mouth and shot himself in the head ... that after the third shot, Cole was still crouched at the file cabinet with his gun pointed toward the door. At that point, another detective came to the door and shot Cole in the left side of his torso, after which Cole slumped to the ground.'

In the fifth version, set forth in another Chicago Tribune article by Monica Davey, December 1, 1999, the writer reports that according to police spokesman Pat Camden:

`About 7:00 p.m., on October 30, at Wentworth, 5101 South Wentworth Ave., Cole asked the detective who was questioning him to be moved from an ordinary interrogation room to somewhere that he couldn't be overheard. After moving to a small office, Cole grabbed a 7-inch paper spike intended for phone messages and lunged at the detective. In the struggle, Cole grabbed the detective's gun. He fired at the officer but missed. With the sound of the shot two other officers bolted into the office, and each fired at Cole. Almost simultaneously, Cook County prosecutors say, Cole shot himself in the mouth. Camden said he was not sure the order of the last shots fired. A medical examiner's report shows three gunshot wounds on Cole's body: in his mouth, in his abdomen, and on his right arm. The examiner's report, which categorized Cole's death as a suicide, said the wound in Cole's mouth was what killed him.'"

On April 12, 2000, following courtroom assignment, Richard A. Devine, in his official capacity as Cook County State's Attorney, filed a motion to intervene in the instant matter. McCall filed an objection to the motion and, following oral argument, the trial court granted Devine's motion to intervene.

Subsequently, on September 21, 2000, Devine filed a motion under section 2-615(e) of the Code of Civil Procedure (735 ILCS 5/2-615(e) (West 2000)) for judgment on the pleadings. The motion alleged that McCall failed to establish, as a matter of law, that there was a conflict of interest which precluded Devine from investigating and deciding whether to prosecute anyone for Cole's death. For purposes of the motion, Devine admitted as true the allegation that over 90% of the criminal cases prosecuted by the Cook County State's Attorney's office have been investigated and brought to the Cook County State's Attorney's office by the Chicago police department. Devine asserted, however, that the fact that Chicago police officers "investigate crimes and seek the initiation of criminal prosecutions does not mean that the State's Attorney of Cook County has a personal interest in each member of the department sufficient to remove him from his statutorily mandated responsibilities." Devine asked the court to disregard McCall's remaining allegations as either conclusory in nature or surplusage. Devine denied interest...