Trial of former Cook County assistant state’s attorneys halted for appeal after ruling rebuking Kim Foxx’s office

  • Oops!
    Something went wrong.
    Please try again later.

A criminal trial of two former Cook County assistant state’s attorneys was halted suddenly Wednesday when prosecutors said they planned to file a rare mid-trial appeal after a judge limited testimony from a key witness and sharply criticized Kim Foxx’s office.

The move pushes the criminal case into an indefinite holding pattern, as the sides argue over key concepts such as attorney-client privilege and the right to a speedy trial. Indeed, the issues are so critical to American jurisprudence, the trial judge took the unusual step of immediately releasing a transcript of his ruling so the public could better understand the reasoning for his decision.

Nicholas Trutenko, 68, and Andrew Horvat, 48, are accused of wrongdoing in connection with the third trial for Jackie Wilson, whose infamous case was critical to unveiling systemic practices of torture at the Chicago Police Department. Special prosecutors have alleged that Trutenko lied on the stand about details and conversations surrounding a relationship with a critical witness against Wilson, becoming complicit in depriving Wilson of his ability to confront an accuser, another basic right for defendants in the criminal justice system.

Lake County Judge Daniel Shanes, who was assigned the case after the entire Cook County judiciary was recused, barred large portions of testimony from Paul Fangman, an assistant state’s attorney assigned to the civil actions bureau of the Cook County state’s attorney’s office, ruling that he had an attorney-client relationship with Trutenko in the weeks leading up to his testimony during Wilson’s 2020 trial.

Shanes delivered a lengthy opinion in which he rebuked the handling of the matter by Foxx’s office, calling the concept of attorney-client privilege a “bedrock of justice.”

“The attorney-client privilege is the oldest privilege in American law. It is the longest standing doctrine of our kind in our jurisprudence,” Shanes said.

After the ruling, prosecutors said they intend to appeal to a higher court within the next few days. Defense attorneys representing Trutenko and Horvat vigorously objected to the pause in proceedings, arguing that their clients have a right to a speedy trial.

“We were very surprised and very disappointed in the judge’s ruling and we intend to appeal,” special prosecutor Lawrence Oliver II told the Tribune after the hearing.

Oliver was appointed special prosecutor due to conflicts with the Cook County state’s attorney’s office. A mid-trial appeal is so rare in Illinois courts that none of the veteran defense attorneys on the case — all of whom were Cook County prosecutors earlier in their careers — could recall having a previous case halted for that reason. Prosecutors, however, have the right to make ground-stopping appeals because they have no recourse after a trial ends due to double jeopardy protections held by the defendants.

Both defense teams and the judge have referred to some of Fangman’s statements as irrelevant, regardless of whether there was an attorney-client relationship. Prosecutors, however, have repeatedly suggested in court that his testimony speaks to the heart of the perjury and obstruction charges against Trutenko.

Prosecutors have said Trutenko told Fangman about a plea agreement in a federal drug case made with a jailhouse snitch witness in Wilson’s 1989 trial. On the witness stand, however, Trutenko testified he couldn’t remember details about the favorable deal, a statement prosecutors have argued shows Trutenko didn’t tell the truth, according to the indictment.

During a lengthy evidentiary hearing about the matter on Tuesday, prosecutors argued that defense attorneys had months to contest Fangman’s inclusion on the witness list, but waited until the trial had already begun to do so. Shanes, though, in his ruling said prosecutors could have anticipated the issue and sought to admit the testimony before trial.

Trutenko and Horvat have been standing trial before Shanes since last month, the latest chapter in a legal saga that has spanned four decades and been defined by its many dramatic turns. Trutenko is charged with perjury, official misconduct, obstruction of justice and violating a local records act in relation to his testimony at Wilson’s 2020 trial, which imploded after the special prosecutors handling the case said they dropped it after learning that Trutenko lied on the stand about a longtime friendship with a witness.

Horvat, who represented Trutenko in those proceedings as an attorney for the civil actions bureau of the Cook County state’s attorney’s office, is charged with official misconduct.

Shanes ruled that large portions of evidence that special prosecutors sought to solicit from Fangman was inadmissible due to a finding of attorney-client privilege between Fangman and Trutenko, though he also ruled that much of the evidence would not have been admitted or considered for other reasons. Special prosecutors handling the case had argued that Fangman represented the state’s attorney’s office, not Trutenko in a personal capacity.

In his ruling, Shanes was sharply critical of Foxx’s staff for what he said was a failure to make clear whether Fangman was serving as an attorney for Trutenko or only representing the office’s interests. Fangman and his supervisor both testified he only represented the office, though he communicated with Trutenko about his subpoenaed testimony and set up meetings regarding his appearances.

Horvat was the only lawyer specifically assigned as Trutenko’s attorney, which prosecutors argued the veteran prosecutor should have understood given his tenure in the office, legal expertise and state law that allows the office to have its interests represented in court. The judge, however, said Foxx’s office blurred the lines to the point where Trutenko could have reasonably believed Fangman was his lawyer.

“The court is shocked by the failure of the Cook County state’s attorney’s office to ensure their assistants know when and how attorney-client relationships form, and to take appropriate steps to make sure an attorney-client relationship only forms when one is intended,” Shanes said. “Issues like these threaten the very foundation of the practice of law and undermine public confidence in the law.”

Shanes said it would have been “easy, so easy” for the state’s attorney’s office to have prevented forming an attorney-client relationship between Fangman and Trutenko by simply stating that or putting it in writing.

With the judge ruling Fangman and Trutenko had an attorney-client relationship, the situation has become a sticky one for Foxx’s office because Fangman and other assistant state’s attorneys previously testified before the grand jury and shared statements similar to the ones Shanes ruled as privileged. Trutenko’s attorneys signaled Wednesday that they are considering filing complaints against those attorneys with the Illinois Attorney Registration and Disciplinary Commission.

“I don’t know whether they just willfully ignored it or don’t understand it, but clearly they don’t have any concept of the fact that Nick had an attorney-client privilege with the lawyer that was representing him. As if they could just violate it any time they wanted,” Trutenko attorney Brian Sexton said. “And that’s a joke that they can’t even recognize that.”

Horvat’s attorney Terry Ekl took it a step further, suggesting that assistant Cook County state’s attorneys could face criminal charges for their actions based on the arguments made against his client.

“The basis of this indictment is that Andrew violated the rules of professional conduct and therefore committed a felony,” Ekl said. “If Kim Foxx and her lackeys in the office violated the rules of professional conduct as it relates to attorney-client privilege, isn’t that also a felony offense under the theory of this prosecution? Tell me what the difference is. Kim Foxx and her people ought to be looking over their shoulder as to whether they’re subject to criminal liability as well.”

A spokesperson for Foxx’s office declined to comment, citing the ongoing trial.

Attorneys for Horvat noted that Fangman’s testimony centered around Trutenko and asked that Horvat’s case continue, even if the case against his co-defendant was delayed, though prosecutors signaled that they believe the evidence is “intertwined.”

It’s unclear whether prosecutors will bifurcate two criminal trials and proceed with their case against Horvat, who has been the subject of very little testimony or evidence so far. The judge gave them until next week to decide.

Ekl said any move to delay his client’s case would violate his right to a speedy trial. Attorneys for Trutenko also objected to the stay, asking that prosecutors call their next witness.

“This is hanging over the heads of Nick and Andrew,” Ekl said. “It’s affecting their futures. It’s just wrong.”

The bench trial resumed Monday at the Rolling Meadows branch court in northwest suburban Cook County after a more than a two-week break, with some current and former high-ranking employees of the Cook County state’s attorney’s office taking the stand.

Last month, special prosecutors opened their case by arguing that Trutenko and Horvat engaged in misconduct during Wilson’s third trial.

“Most disturbing is when public officials who are sworn to be guardians of people as well as processes ... fail in their obligations and operate above the law,” Special Prosecutor Lawrence Oliver II said during opening statements in October.

The alleged perjured testimony involves a witness who testified against Wilson during his 1989 trial prosecuted by Trutenko. The witness, reputed con man William Coleman, developed a longtime friendship with Trutenko, even naming the prosecutor godfather to his child.

Oliver’s team previously put on the stand the special prosecutors who were tasked with trying Wilson for a third time in 2020. One of the prosecutors, Lawrence Rosen, testified that he was unable to locate Coleman and believed him dead. Because of that, Rosen said, transcripts of his previous testimony against Wilson were read into the record at the trial. He testified he made this known to Trutenko prior to the trial.

But on the stand in 2020, Trutenko divulged a longtime friendship with the man.

Rosen told the court that he was stunned to hear Trutenko discuss a friendship, as well as recent contact between the two men. Rosen said he spoke to Trutenko before he testified, and made note of the fact that Coleman’s testimony would be read into the record because he couldn’t be located. Rosen alleged that Trutenko untruthfully testified that Coleman did not come up in prior conversations with Rosen.

On cross-examination, attorneys for the former assistant state’s attorneys attacked the credibility of Rosen, and argued that Rosen didn’t try to correct a misunderstanding on Trutenko’s part.

Oliver has also alleged that Horvat, who represented Trutenko, failed to “take obligatory and rudimentary steps to avert continued concealment of information about Trutenko and Coleman.”

On Monday, former Cook County First Assistant State’s Attorney Joe Magats testified for the prosecution, detailing how he recommended that his boss, State’s Attorney Kim Foxx, terminate Trutenko following the events of the third Wilson trial.

“In part, it was more not what he said or did in court, it was, for me, the relationship between himself and the confidential informant in the case,” Magats said.

Prosecutors also called an expert witness to testify about Trutenko’s phone and computer, as well as an investigator with the state’s attorney’s office who was tasked with collecting Trutenko’s belongings after the firing. They testified that Trutenko had factory reset his company phone, though defense attorneys during cross-examination suggested it was to remove family photos and videos rather than an attempt to conceal anything.

Jackie Wilson’s case traces back more than 40 years to the slayings of Chicago police Officers William Fahey and Richard O’Brien, who were shot by Wilson’s brother Andrew during a traffic stop.

Jackie Wilson has traveled to the northwest suburban branch court in Rolling Meadows each day for the trial, and said he doesn’t mind the delay, learning patience during a long stint in prison.

“I spent 36½ years in prison and now I’m here,” he told the Tribune Wednesday.

Jackie Wilson, then 21, was behind the wheel of the car and was accused of being the getaway driver. He has said he did not know his brother would shoot the officers.

In 1989, at Jackie Wilson’s second trial, Coleman, the British con man with a long criminal history, testified that Wilson had admitted his role in the crime while they were locked up together in the county jail.

A judge in 2020 issued a certificate of innocence for Jackie Wilson.