Second special prosecutor in two years adds to turbulence for State’s Attorney Kim Foxx’s office

For the second time in two years, Cook County State’s Attorney Kim Foxx’s office will soon find itself under the scrutiny of a special prosecutor empowered to investigate accusations of high-stakes legal and ethical lapses.

The underlying cases that triggered the two probes could hardly be more different. The first was a minor celebrity charged with a low-level felony. The most recent involves a cop killing, a wrongful conviction and an allegedly perjurious prosecutor.

But two separate special prosecutors appointed to investigate the same state’s attorney’s office might well be unprecedented, legal observers said. And while Foxx’s allies cast the Jussie Smollett investigation as a political distraction from her reform efforts, the latest allegations, in the Jackie Wilson case, relate more closely to centerpieces of her progressive agenda.

Attorney Richard Kling, a veteran Chicago defense lawyer who once represented Wilson in his first trial in the early ’80s, said the recent allegations against the state’s attorney’s office came as a shock.

“Back in the ’80s there was no doubt in anybody’s mind that prosecutors were screwing around,” he told the Tribune. “We thought over the years, (notorious ex-Chicago police Cmdr. Jon) Burge has been convicted ... things have changed. And obviously some things haven’t.”

Foxx’s office has defended its record, and a spokeswoman said it welcomes the latest special prosecutor.

But in a scathing ruling Thursday, Cook County Judge Alfredo Maldonado called for that special prosecutor to look into the alleged perjury of former prosecutor Nick Trutenko, as well as the “legal and ethical nightmare” posed by assigning assistant state’s attorneys to represent him as a trial witness and the office as a whole.

Trutenko was a key witness in the case of Wilson, which has a complicated history stretching back decades. He was tried and convicted twice in a 1982 cop killing; the case was overturned in 2018 on allegations that he was tortured into confessing; and a separate team of special prosecutors brought him to trial for a third time last year.

Trutenko, who prosecuted Wilson in his 1989 trial, was called as a defense witness. From there, an already thorny case took some bizarre turns.

Trutenko testified that he had a close friendship with a key witness from Wilson’s 1989 trial — a witness who was reputed to be an international con man, liar and fugitive. Nobody knew William Coleman’s whereabouts, so transcripts of his previous testimony against Wilson were read into the record at last year’s trial.

But in a surprise to everyone, Trutenko took the stand and said Coleman was still alive. Furthermore, he said he had not discussed Coleman with the special prosecutors handling Wilson’s case — which was untrue, according to those prosecutors. When they heard the alleged perjury, they dropped the charges against Wilson altogether.

Matters somehow got more complicated from there. Foxx’s office fired Trutenko that evening. He allegedly wiped his work phone clean before investigators could retrieve it.

The next day, the state’s attorney’s office asked the Illinois attorney general to look into the claims of perjury. That office ultimately declined to launch an investigation, Cook County prosecutors said in court.

Meanwhile, special prosecutors revealed that Andrew Horvat, the assistant state’s attorney assigned to represent Trutenko, had warned them against asking Trutenko any questions about Coleman.

Wilson’s attorneys, incensed, asked Judge William Hooks for sanctions against the prosecutors, noting also that an assistant state’s attorney representing the office had tried to keep shielded a memo about Trutenko outlining alleged misconduct in a separate case.

Instead, Hooks referred the case to a different judge for consideration of appointing a special prosecutor, a request Maldonado ruled on in fiery terms Thursday, saying there was evidence of ineptitude at best and a criminal coverup at worst.

“The Cook County state’s attorney’s office should never have been involved in Mr. Trutenko’s testimony,” he said.

In an interview with the Tribune, one of Wilson’s attorneys took it a step further, alleging that the state’s attorney’s office engaged in a “massive cover-up” to wrongfully convict Wilson yet again.

“The motive is clear,” Elliot Slosar said, alleging that the state’s attorney’s office knew that if Wilson were acquitted, prosecutors could be sued for decades’ worth of misconduct allegations regarding his previous overturned convictions.

At recent court hearings, prosecutors did not object to an outside probe of Trutenko’s actions but fought strenuously against expanding the scope of an investigation to include the conduct of its current employees.

Horvat and his colleague, Assistant State’s Attorney Paul Fangman, were acting as civil attorneys, they argued. As members of the office’s Civil Actions Bureau, they were not prosecutors in the traditional sense, Assistant State’s Attorney Amy Crawford said, and Horvat had no idea about Trutenko’s relationship with the witness until the night before the testimony.

“There is some suggestion of nefarious intent to subvert a prosecution … some criminal intent or even a prosecutorial intent, (but) they simply were not wearing prosecutors’ hats,” Crawford argued before Maldonado last month.

Illinois statutes task each county state’s attorney’s office with representing county employees in legal matters. Other jurisdictions separate that legal function from the prosecutor’s office.

And so, Maldonado ruled, Horvat and Fangman were put in “a precarious, perhaps impossible, ethical situation” — obligated to serve the interests of Trutenko and the office at the same time they likely were bound by a prosecutor’s obligation to disclose information favorable to a defendant.

“At best, the CCSAO acted in a misguided and inept manner as to Trutenko and the ethical crisis created by his misconduct and trial testimony,” he wrote. “However, at worse, the actions of the CCSAO could have been motivated by unethical and, perhaps, illegal reasons to cover up misconduct.”

A spokeswoman for the office issued a statement Thursday saying they welcome the special prosecutor’s investigation in the interest of transparency.

Maldonado likely will name the special prosecutor later this summer.

His ruling came almost exactly two years after a different judge ordered a special prosecutor’s investigation into the Smollett case. In June 2019, after rollercoaster twists and turns, Toomin said Foxx didn’t properly recuse herself when she withdrew from the onetime “Empire” actor’s case, rendering the entire prosecution void from the start.

Special prosecutor Dan Webb said his team did not find evidence of wrongdoing by Foxx or her subordinates that could sustain criminal charges. However, they found multiple ethical and procedural lapses in the office’s handling of the case, according to a summary of his findings issued last year. Foxx and others repeatedly misled the public about the case and abused their discretion in giving Smollett an unprecedented deal, they wrote.

Webb’s findings added fuel to right-wing criticism of Foxx, but allegations of mishandling a case like Wilson’s might strike closer to home given that Foxx has boasted a progressive policy record on wrongful-conviction matters.

“The fact that the Cook County state’s attorney’s office is going to be subject to a second special prosecutor in as many years is a concerning pattern,” Slosar said. “... I’m not sure that the actions that she has taken and the positions she’s taken over the last eight months (in the Wilson case) are consistent with an elected prosecutor who is reform-minded and progressive.”

Joshua Tepfer, who for years has fought to overturn cases connected to corrupt police officers, accused Foxx of “justice by press release” — saying the right progressive things, but not following through.

Tepfer alleged that while prosecutors have agreed to throw out dozens of cases related to notorious ex-Chicago police Sgt. Ronald Watts, they are fighting to maintain dozens of others, and have not followed through on promises to audit cases connected to a different allegedly abusive police detective.

Asked to respond, office spokeswoman Sarah Sinovic said prosecutors are actively reviewing allegedly tainted convictions, and that the “argument that we’re not doing anything is just false.”

mcrepeau@chicagotribune.com