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.

Related to the potential destruction of evidence in this same case, CountyLeaks reported in November 2012 that the Forest Preserve sought permission from the State to dispose of 815 cubic feet of records during the criminal investigation.

Nearly 28 months after losing their Forest Preserve jobs and contract, 16 months after their arrests and 14 months after their indictments of 317 the felony counts, the DuPage County State's Attorney's office still has not produced bill of particulars -- the formal, detailed, written complaint of charges (725 ILCS 5/111-6).

Judge Fawell ordered the State to produce a bill of particulars last spring. After a series of delays over months -- a flood, attorney vacations, attorney non-appearance, and the judge testifying in another criminal case -- DuPage County Asst. State's Attorney Ken Tatarelis requested more time at the December hearing.

Defense attorneys Terry Ekl and Ernie DiBenedettrepresent Tepper and McDonald respectively.

Collins is a partner in Perkins Coie LLP's litigation practice. He previously worked for the United States Department of Justice as an assistant U.S. Attorney, where he led the trial and conviction of former Illinois Governor George Ryan on charges of racketeering and fraud. Judge Fawell disclosed to Mahmood that Collins was the prosecutor against her brother-in-law. Scott Fawell, once a top aide to George Ryan, was imprisoned for 4 1/2 years.

Calling for urgent ethical reform following the felony charges against former Illinois Governor Rod BlagojevichIllinois Governor Pat Quinn appointed Collins in 2009 to chair the Illinois Reform Commission

The former federal prosecutor later authored, Challenging the Culture of Corruption: Game Changing Reform for IllinoisCollins outlined four specific necessary reforms: passing true campaign finance reform to eliminate "pay to play" politics; creating a fair and competitive election process; enhancing corruption-fighting tools to state law enforcement; and improving voter access and participation to encourage citizen participation in elections and governance.

In 2010, Collins was selected by the Chicago Law Bulletin as one of Chicago's "Top Ten" attorneys of the decade.

This is not Collins' first encounter with a DuPage prosecutor. Former DuPage County State's Attorney Joe Birkett had testified before Collins and the Illinois Reform Commission on his ideas to combat public corruption. Details are explained in CountyLeaks' all-time most popular post, "Tweets, Twits & Tax Dollars: Joe Birkett for Illinois, Proven Leader? Proven Corruption Buster?"

CountyLeaks Asks:

Why didn't the DuPage State's Attorney's office order on Day One that all data, equipment and documents at the Forest Preserve be preserved? 

Has the DuPage State's Attorney's office begun an investigation into conspiracy and obstruction of justice for the destruction of data and equipment before and during a criminal investigation or will Berlin turn that over to the FBI due to a conflict of interest?

Why would the Alamach equipment and its back-up data -- evidence of work product in a potential criminal case -- be turned over to a guy freelancing for JRM? Why not an authority? 

Is there a back-up of the back-up?

Is it legal for an unlicensed firm to conduct a secret "internal investigation" without first providing notice to the employees? Just checking...

Why is the Forest Preserve using Mahmood's equipment? 

Why is defense attorney Terry Ekl such a pootie cat on this case when he's been just the opposite in the Lou Bianchi case? Has he written a check yet in 2014 to Citizens for Bob Berlin (via JRM's sister-in-law and then to be reported by Forest Preserve Financial Director Jack Hogan, of course)?

In reviewing and investigating this case, did it influence the State's Attorney's office for the owner of JRM to be the brother of their lobbyist and the brother-in-law of the state's attorney's paid campaign fundraiser? Or is it like everything else CountyLeaks reports, pure happenstance?

Will the State seek yet another continuance on the bill of particulars on Jan. 24th? If yes, will a defense attorney object? Or will he just sign another check to Citizens for Bob Berlin?

Regardless of the legality, should a state's attorney accept campaign contributions from defense attorneys particularly when both are parties in ongoing cases? Why does Berlin's campaign need so much cash when he's never faced opposition and the next election is over three years from now? Are the DuPage Democrats that spooky?

Does Vince Durante still moonlight for JRM while working for IDOT management?

How did Troy Clampit land a job at the RTA? Could it be a patronage job through RTA Board member Pat Durante, father of Vince? 

Does Forest Preserve Commissioner Joe Cantore still hire Forest Preserve IT staff to do side work for his personal business?

Is Reverse Spin still assisting the Forest Preserve behind the scenes, perhaps as a subcontractor?

Is this about conspiracy and obstruction of justice or just Felix-Unger-on-steroids housekeeping?

CountyLeaks Recommends:

Medill Watchdog's "No Sunshine in the Forest"

Following is the Memorandum in Support of Defendant Arif Mahmood's Motion to Dismiss Indictment. To enlarge, click or double-click the image: