The trial of two former Cook County State’s assistant state’s attorneys has been postponed indefinitely as special prosecutors submitted paperwork this week for a rare mid-trial appeal that questions a judge’s decision to limit testimony from a key witness.
It’s unclear how long the process will take, as the appeal delves into fundamental rights regarding attorney-client privilege and the right to a speedy trial. Both sides signaled they would push for an expedited schedule, but even if they file the necessary motions and responses at a rapid clip, they cannot dictate how long it will take the justices to rule.
“We want to this to go as quickly as they (the defense teams) do,” Assistant Special State’s Attorney Marisa Levitt said in court Friday. “We’re not happy to do this but feel it is necessary for the administration of justice.”
Veteran defense attorney Terry Ekl, who is representing former Assistant State’s Attorney Andrew Horvat estimated it could take as long as a year. The delay particularly infuriated Ekl, who has argued the judge’s ruling has nothing to do with his client and therefore his trial should continue while the barred testimony related to co-defendant, Nicholas Trutenko, is on appeal.
Special prosecutor Lawrence Oliver II has argued the evidence is so “intertwined,” it would harm their case to bifurcate them at this point.
Ekl said he would move to dismiss the appeal, which he says put his client’s life on hold without any legal justification.
“It’s beyond frivolous as it relates to Mr. Horvat,” Ekl said. “It’s fraudulent.”
Trutenko, 68, and Horvat, 48, are accused of wrongdoing in connection with the third trial for Jackie Wilson, whose infamous case surrounding the 1982 murders of two police officers was critical to unveiling systemic practices of torture in the Chicago Police Department. Special prosecutors have alleged that Trutenko lied on the stand about conversations surrounding a critical witness against Wilson, becoming complicit in depriving Wilson of his ability to confront an accuser, a basic right for defendants in the criminal justice system.
Trutenko and Horvat have been standing trial before Lake County Judge Daniel Shanes since October, 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 discussions regarding the witness.
Trutenko was the lead prosecutor in Wilson’s second trial in 1989. Years later, in the 1990s, Trutenko formed a friendship with the witness, an international con man named William Coleman, after Coleman was released from prison and Trutenko had left the state’s attorney’s office for private practice. Trutenko later returned to the state’s attorney’s office.
Wilson’s attorneys called Trutenko as a defense witness in the 2020 retrial. Though he testified truthfully about the relationship, prosecutors have said Trutenko committed perjury when he testified he did not have a conversation with prosecutors about Coleman prior to his testimony.
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.
Last week, 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 also assigned to the civil actions bureau. The judge ruled that Fangman had an attorney-client relationship with Trutenko in the weeks leading up to his testimony during Wilson’s 2020 trial.
Prosecutors have said Trutenko told Fangman about a plea agreement in a federal drug case made with Coleman, a jailhouse snitch witness in Wilson’s 1989 trial. On the witness stand, however, Trutenko testified he couldn’t remember details about the favorable plea deal, a statement prosecutors have argued shows Trutenko didn’t tell the truth, according to the indictment.
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 the judge 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 Cook County State’s Attorney Kim 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 testified during the trial that Fangman 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.
Trutenko’s attorneys told the Tribune that they don’t find Fangman’s statements damaging to their defense, but their client opposed Fangman’s testimony as a matter of principle. Trutenko, they said, believed he had a moral obligation to stand up for other Cook County prosecutors who may face similar representation issues.
“He’s doing it for all the assistant state’s attorneys who get advised by civil state’s attorneys,” Trutenko attorney Brian Sexton said. “They’re trusting them, telling them things in confidence and apparently Foxx believes she can violate that whenever she wants. It’s a bigger issue.”
Oliver, a former federal prosecutor, 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 the veteran attorneys on the case — all of whom were Cook County prosecutors earlier in their careers — have said they cannot 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.
Jackie Wilson, 63, received his certificate of innocence in December 2020 after spending nearly four decades behind bars. He has filed a federal civil rights lawsuit against several police officers and prosecutors, including Trutenko and Horvat. His older brother, Andrew Wilson, now deceased, fatally shot both officers during a traffic stop where Jackie Wilson was also present.