Wednesday, January 22, 2014

Round 1: DuPage County State's Attorney Bob Berlin on the Ropes -- Former Federal Prosecutor Patrick Collins Files Motion to Dismiss All Charges


Part OnePart TwoPart ThreePart FourPart FivePart Six, Part SevenPart Eight

Former federal prosecutor Patrick Collins has filed a motion at the Henry J. Hyde Judicial Office Facility of Wheaton to dismiss the case against Arif Mahmood for his alleged involvement in a scheme of stealing $150,000 from the Forest Preserve District of DuPage County (FPDDC).

In November 2012, the District's former director of its IT department, Mark McDonald, and the department manager, David Tepper, were each indicted with 140 felony counts, while Mahmood, who worked for Alamach Technology, Inc., an IT vendor for the District, was charged with 37 counts, in the alleged theft scheme.

In an eight-page memorandum, Collins requested the Court to dismiss the case due to apparent failure to preserve "crucial evidence" for his client "to defend himself against the charges alleged".

Excerpts from the memorandum:
Pursuant to a written agreement with the FPDDC, Mahmood reluctantly complied and (he understood, temporarily) turned over all the computer equipment, and its fruits, to the FPDDC. The FPDDC, through its agents and its computer expert, hand-picked by the president of the FPDDC, took possession of the computer equipment in furtherance of the pending law enforcement investigation. 
Stunningly, and as recently acknowledged by the FPDDC, neither the FPDDC, its expert, nor law enforcement took any steps to preserve the equipment, nor did any of them make a mirror image of equipment so that it could be utilized for the criminal case.
(Scroll to end of article to read entire motion)
The response by the FPDDC was quite disturbing: at a basic level, even after multiple inquiries, the FPDDC has been unable to confirm that they possess the computer equipment that was seized from Mahmood. Second, contrary to basic forensic procedures, the FPDDC has acknowledged that none of the computer devices were preserved and no forensic images or backups were made. Finally, after a forensic assessment by Mahmood's expert of certain computer equipment that may be the computer equipment at issue, it appears that all the equipment at issue was put back in service by the FPDDC, thereby destroying any possibility of analyzing what Alamach, and its subcontractor, did under the terms of the contracts. 
As a result of the FPDDC's actions and inactions, the computer equipment has been irretrievably tainted for use in this criminal proceeding.
Quite simply, the FPDDC's failure to preserve the most crucial evidence in the case has destroyed any meaningful opportunity Mahmood has to defend himself against the charges alleged. Because of this clear and irreparable violation of Mahmood's right to due process, the Court should dismiss the indictment as to Mahmood.
At a Dec. 6th hearing, DuPage County Judge Blanche Hill Fawell ordered the state to respond to Collins' motion by Jan. 24th.