FBI interview with James Files
FEDERAL BUREAU OF INVESTIGATION
Date of transcription 8/16/93
JAMES FILES (assumed name), aka James Earl Sutton (true name), date of birth January 24, 1942, place of birth Oakman, Alabama, social security account number: 323-34-9241, (under the name JAMES FILES), ILLINOIS DEPARTMENT OF CORRECTIONS number N14006, was interviewed at the STATEVILLE CORRECTIONAL CENTER, Joliet, Illinois, wherein the following was discussed:
At the onset of the interview, FILES stated that through conversation with Attorney DON IRVIN, he understood that he was to be interviewed by the FBI but that the interview would be conducted in the presence of IRVIN. FILES was told that Agents were unaware of any arrangements made in that regard.
FILES expressed his desire to talk to the FBI but stated his reluctance to submit to an interview without IRVIN being present. FILES also advised that he wanted a grant of immunity before submitting to an interview. FILES advised that in the unlikely event he won his appeal, he didn’t want exposure to additional charges.
Agents told FILES that Agents were not authorized to grant him immunity and that such a procedure was the responsibility of the U.S. Attorney. Agents further told FILES that immunity grants are not extended by the U.S. Attorney to individuals without some logical foundation.
Agents further told FILES that IRVIN had provided information to the FBI that indicated he (FILES) had personal knowledge concerning the assassination of JOHN F. KENNEDY (JFK). Agents then told FILES that a review of his (FILES’) information as provided by IRVIN determined that his (FILES’) recollections were in significant contradiction to the WARREN COMMISSION report. Agents told FILES That the findings of the WARREN COMMISSION report had been accepted by the government as an accurate factual account of the JFK assassination.
Investigation on 8/9/93 at Joliet, Illinois File # 62-0 by SAs Robert C. PECORARO & WAYNE F. ZYDRON:kf Date dictated 8/9/93
Continuation of FD-302 of JAMES FILES, On 8/9/93, Page 2
Agents then told FILES that Agents further understood from IRVIN that he (FILES) was cognizant of his contradictions with the WARREN COMMISSION findings and that he (FILES) wanted to make available the “true story” of the JFK assassination out of respect to the deceased JOE WEST.
Agents told FILES that in view of his obvious conflicts with the WARREN COMMISSION findings, he would unlikely be afforded subsequent opportunities for interview by the FBI or the U.S. Attorney in regard to the JFK assassination unless he established his credibility with the government. FILES was told that credibility could sometimes be established through corroboration of facts furnished by an individual during an interview. Agents told FILES that the purpose of the interview was to obtain additional information from him in an effort to establish him as a credible person rather than to build a murder case on him. FILES was told that the JFK assassination took place almost 30 years ago and it would take extraordinary corroboration to make recollections credible in view of the WARREN COMMISSION findings.
Agents told FILES that should he decide to answer questions, it would need to be a voluntary action on his part. FILES was repeatedly told that no immunity grant or any other guarantees or promises could be extended to him should he decide to be interviewed. In response, FILES stated that he would voluntarily answer questions but would not admit to any murders.
Agents asked FILES to state his true name and background information. FILES advised that his true name was JAMES EARLY SUTTON but that sometime in 1963, he assumed the name of JAMES FILES and has been known as JAMES FILES ever since. FILES recalled that sometime in the late 1940s he moved to the Chicago metropolitan area with his mother, VERA BRASSEAL, and advised that he is divorced to FAITH FILES, age 50, who was last known to reside in Glendale Heights, Illinois. FILES stated that he had two children from his marriage, KATHLEEN, age 26 and SHAWNN, age 17. FILES recalled that KATHLEEN was last known to reside in Chrystal Lake, Illinois, and SHAWNN in Melrose Park, Illinois.
Continuation of FD-302 of JAMES FILES, On 8/9/93, Page 3
Agents made reference to his (FILES’) military service in the U.S. Army and asked FILES to summarize his military career. FILES recalled that he joined the U.S. Army under the last name of SUTTON. He said he was afforded basic training at Ft. Leonard Wood and Advanced Infantry Training (AIT) at Ft. Polk. FILES recalled that after AIT, he volunteered for airborne training and was afforded airborne training at both Ft. Bragg and Ft. Benning. FILES advised that he was assigned to the 82nd Airborne Division.
Agents asked FILES to describe his airborne training. FILES recalled that airborne school was six to eight weeks in duration and that he made four jumps-including one night jump. FILES recalled that airborne school consisted of significant classroom instruction before he made his jumps. FILES also recalled that while in airborne school, he was afforded “Crash Courses” in the Chinese, Laotian and Russian languages. When asked to recall anything eventful (either rewarding or distasteful) about airborne school, FILES was unable to articulate anything in that regard.
FILES recalled that after airborne school, he was briefly stationed in San Diego (California), Okinawa and Viet Nam before deployment to Laos. FILES recalled that in Laos, he held the rank of “Spec 4” (Specialist Fourth Class) and was assigned to a Special Advisory Group. FILES recalled that his group specialized in small arms weapons and “mechanical” ambushes.
Agents asked FILES to state details over his shooting of two U.S. soldiers in Laos. FILES stated his refusal to admit to the shooting but stated that he was charged for the shooting. FILES recalled that he was afforded a preliminary court martial hearing somewhere in Southeast Asia and was assigned to Ft. Meade, Maryland, to await his court martial. FILES then recalled that he was then transferred to the HINES VETERAN HOSPITAL, Maywood, Illinois, for psychological related treatment.
FILES then recalled that at HINES, he was visited by DAVID ATLEY PHILLIPS who identified himself as some kind of “controlled” for the CIA. FILES recalled that PHILLIPS asked him to train people in the use of military arms and tactics. FILES recalled that upon accepting PHILLIPS’ offer, PHILLIPS “signed him out” of HINES. FILES assumed that PHILLIPS or the CIA handled his discharge from the Army.
Continuation of FD-302 of JAMES FILES, On 8/9/93, Page 4
FILES then recalled that following his release from HINES, PHILLIPS arranged a brief stay for him at a “sleazy” motel in Miami (Florida) whereafter, he was sent to a camp in the Florida Everglades. FILES recalled that from November 1960 until April 1961, he was part of a group of 10 Americans-including FRANK STURGIS, who trained a military force of 350 Cubans at that camp. FILES advised that he was qualified as an “Expert” with the M14 rifle in the Army and taught “grenades” and “mechanical” ambushes to the Cubans. FILES recalled that he was paid a salary of $300.00 per month in cash by PHILLIPS.
FILES described PHILLIPS as a white male, 6′ tall, slim build, 30 years of age (circa 1960). FILES recalled that PHILLIPS had the nickname “The Eagle” at the camp in the Florida Everglades.
FILES recalled that after the Cuban soldiers were killed, he (FILES) went briefly to Atlanta (Georgia) where he “partied” with liquor and women. FILES then recalled that he returned to Melrose Park, Illinois, where he “ran guns” from Maywood, Illinois, to Clinton, Louisiana. FILES recalled that the guns were .45 caliber machine guns made by KNOXVILLE ARMS. FILES advised that PHILLIPS paid him $300.00 per month to transport guns to Clinton, Louisiana, and deliver the guns to LEE HARVEY OSWALD. FILES recalled he made several trips to Clinton, Louisiana, to deliver guns to OSWALD.
Agents asked FILES if the aforementioned LEE HARVEY OSWALD was the same LEE HARVEY OSWALD who shot KENNEDY. In response, FILES sated (sic) that OSWALD did not shoot KENNEDY. FILES adamantly disputed the fact that OSWALD shot KENNEDY and made reference to the fac that OSWALD tested negative on a paraffin test.
Agents then made reference to CHUCK NICOLETTI and his (FILES’) relationship with Chicago mobsters. In response, FILES furnished Agents with three pages containing numerous handwritten names. FILES advised that the names were of Chicago mobsters with whom he had familiarity. Agents subsequently examined the above material and noticed that the names were arranged in alphabetical order and that most names were names of Chicago hoodlums that have been identified by the Chicago media as having association with the Chicago mob.
Continuation of FD-302 of JAMES FILES, On 8/9/93, Page 5
Agents then furnished FILES with a handwritten list of names. FILES was told that this list contained names of Chicago mobsters known to have been associated with NICOLETTI. It is noted that unbeknownst to FILES, some of the names were derivative names of FBI employees. FILES was asked if he had known LEE FABRIZIO (FBI employee). Agents represented FABRIZIO as a close associate of NICOLETTI. FILES stated that he had heard of FABRIZIO but never met him. FILES also stated vague familiarity with individuals known as JOE GIARRUSSO, MIKE PAVIA, PATRICK SCALZETTI and DOMINICK PEZOLI (all FBI derivative names) but could not recall ever meeting them.
Agents made reference to the names “DING DONG” and AL TOCO which appeared on FILES’ list. FILES advised that DING DONG was a Chicago mobster who was murdered. FILES recalled that TOCO (true name Albert ROCCO) was “over” BILLY DAUBER. FILES advised that he was involved in chop shops in the 1970s and that he once met DAUBER in Crete, Illinois, where DAUBER demanded 1/3 of “everything”. At the time, FILES recalled that he was chopping 30 cars per week.
Agents asked FILES if he had familiarity with individuals named CLARENCE CROCKETT, GUY BILLS and CHARLEY “The Greek” SOTERAS. FILES stated that none of the above individuals were familiar to him.
Agents asked FILES to name the “street crew” to which NICOLETTI belonged and also name some of the members of NICOLETTI’s street crew. In response, FILES advised that the Chicago mob was not made up of different “families”. In response, FILES was told that Agents were cognizant of that fact but knew that the Chicago mob were loosely organized into “street crews”. FILES was unable to articulate about NICOLETTI’s street crew affiliates with the exception that he had association with SAM GIANCANNA.
FILES was asked to describe his association with NICOLETTI. FILES advised that he chauffeured NICOLETTI around the Chicago area. FILES re called that they drove around in NICOLETTI’s cars. FILES recalled driving NICOLETTI at least a dozen times. FILES further recalled driving NICOLETTI to bakeries in the suburbs. FILES recalled driving in NICOLETTI’s black 1960 Ford, white 1961 Chevrolet and black 1962 Chevrolet.
Continuation of FD-302 of JAMES FILES, On 8/9/93, Page 6
Agents asked FILES if he had driven NICOLETTI to places where NICOLETTI met other mobsters. FILES was unable to recall any details in that regard. FILES then remarked that he recalled an occasion when NICOLETTI “popped” somebody while they were driving together on Lake Shore Drive (Chicago). FILES refused to furnish any details in regard to this incident.
FILES recalled that he did not have telephone service at his Melrose Park residence. FILES recalled that NICOLETTI usually telephonically contacted him at the HARLO GRILL where he (FILES) had frequented to play “pin-ball”. At the time, FILES recalled that he drove a yellow/green colored 1955 Pontiac.
Agents asked FILES to furnish his physical description during that time period. FILES furnished Agents with a colored photograph of a white male, medium build with short black hair. FILES stated that the photograph was taken of him during the above time period. Physical observation of FILES reflects that FILES is a white male, approximately 5’11” tall, long white hair and medium build.
Agents asked FILES to name persons who could verify his relationship with NICOLETTI. FILES named JERRY ESPOSITO, COSMO IASCO, DOMINICK CIMINO, RONNIE BELL, RUPI REGO, KENNY LARRY, STEVE ANSELMO, JOE BUA and MARSHAL CAIFANO as some of the individuals who could verify his relationship with NICOLETTI.
FILES, when asked by Agents, stated that he did not know the identity of the individual(s) who murdered NICOLETTI.
Agents then made reference to the JFK assassination. FILES stated that NICOLETTI told him the he (NICOLETTI) got the contract to “hit” KENNEDY from SAM GIANCANNA. FILES then advised that before KENNEDY was shot, he (FILES), at the request of NICOLETTI, transported guns and hand grenades in a car from Chicago to Dallas, Texas.
FILES advised that he heard NICOLETTI and an individual he knew as JOHNNY ROSSELLI, plan the assassination of KENNEDY.
Agents asked FILES if he actually saw NICOLETTI shoot KENNEDY. FILES stated that he did not actually see NICOLETTI shoot KENNEDY. FILES added that since NICOLETTI planned the
Continuation of FD-302 of JAMES FILES, On 8/9/93, Page 7
assassination and was there by the DAL-TEX building, he knows that NICOLETTI was the one who shot at KENNEDY.
SA ZYDRON then read in verbatim to FILES the following excerpt of the report previously furnished to the FBI by attorney IRVIN:
“When the motorcade came through FILES was on the knoll behind the fence and under the limbs of a tree. As KENNEDY’s limo approached, FILES began hearing shots from behind the President. He had KENNEDY in his telescopic sight. He knew that one of the shots had hit KENNEDY in the back but was not necessarily a fatal hit. FILES, while having KENNEDY in his cross hairs as the limo was moving, said to himself upon hearing each shot “miss, miss, miss, miss”. At this point FILES was concerned that NICOLETTI would not kill KENNEDY. The car was passing in his field of vision, so that Mrs. KENNEDY would soon be lined up behind the President. FILES’ instructions had always been that in a hit no innocent parties were to be harmed. FILES was afraid that if he shot any later that he would shoot Mrs. KENNEDY as well as the President. He made the decision to go ahead and shoot even though “CHUCKIE” was still apparently shooting. He fired and his shot hit KENNEDY on the right front temple between the ear and the eye with the bullet exiting the rear of the head. At almost the same instant of this shot “CHUCKIE” hit KENNEDY in the left rear top of the head. FILES saw Mrs. KENNEDY climb to the back of the limo and pick up a section of the President’s head. He was also aware at this time that CONNALLY had been hit.”
Agents asked FILES to comment about the accuracy of the statement. In response, FILES expressed displeasure over IRVIN providing the statement to the FBI. FILES advised that he would only admit that the statement was accurate as to the actions of NICOLETTI and ROSSELLI. FILES added that he was concerned over his exposure to additional charges.
Agents asked FILES to explain the discrepancy contained in the above excerpted statement and what he said during this interview-namely, that statement indicated that he (FILES) saw NICOLETTI shoot at KENNEDY where during this interview, he (FILES) admitted that he did not actually see NICOLETTI shoot KENNEDY. FILES did not provide an explanation in that regard.
Continuation of FD-302 of JAMES FILES, On 8/9/93, Page 8
Agents asked FILES if any people were near him while he openly displayed his .222 pistol with scope on the grassy knoll in DEALY PLAZA. FILES recalled that there were other people in the area.
Agents asked FILES to describe his feelings after he (FILES) shot KENNEDY. When FILES failed to respond, Agents asked if he felt good, bad, indifferent or even feared getting caught by the FBI. FILES did not provide an explanation in that regard except for stating that he (FILES) hated KENNEDY for not providing air support for the Cubans in the Bay of Pigs.
Agents asked FILES if he would submit to a polygraph examination in regard to the KENNEDY assassination. FILES stated he would refuse to take a polygraph examination.
Agents asked FILES to state his motive for revealing his knowledge of the KENNEDY assassination after almost 30 years had transpired. FILES stated that he was contacted by JOE WEST who said he (WEST) was referred to him by an unnamed FBI Agent. FILES recalled that WEST told him that an FBI Agent said FILES previously took him (FBI Agent) on a tour in Dallas and told him (FBI Agent) about the KENNEDY assassination. FILES denied talking to any FBI Agent in that regard. FILES added that until this interview, he could not recall having any discussions of substance with any FBI Agent.
FILES then advised that he wanted a grant of immunity because WEST had expressed his intent to subpoena him before the grand jury investigating the KENNEDY assassination. FILES reiterated his concern of exposure to additional charges following a possible favorable appeal to his current conviction.
Agents asked FILES if he expected any consideration in exchange for his information relating to the KENNEDY assassination. FILES stated he did not expect or want any consideration for his information. FILES stated he was not concerned if anyone ever learned about his information on the KENNEDY assassination.
Agents told FILES that IRVIN’s report indicated that FILES had possible information in regard to other murders. FILES stated that he would not provide information that could put anyone in jail. FILES expressed concern that the mob could
Continuation of FD-302 of JAMES FILES, On 8/9/93, Page 9
retaliate against him by harming his daughters who reside in the Chicago area.
FILES denied that he was interviewed and/or sought interview with the media in an effort to publicize his recollections of the KENNEDY assassination.
At the conclusion of the interview, FILES was told that Agents would report the results of the interview to their headquarters.
It is noted that when FILES was made available for interview, he carried several items of written material. A quick review of this material revealed it to be correspondence between FILES and JOE WEST and written material in regard to the KENNEDY assassination.
The Case Against David Morley
Comments of James Files will appear in red
Comments of JFKmurdersolved.com will appear in blue
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE
On appeal from the Circuit
OF ILLINOIS,Court of Lake County.
Plaintiff-Appellee, No. 91–CF–1001
v.
DAVID T. MORLEY,
Honorable John R. Goshgarian,
Defendant-Appellant. Judge, Presiding.
______________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Following a jury trial in the circuit court of Lake County, defendant, David Morley, was found guilty of two counts of attempted first-degree murder, two counts of aggravated discharge of a firearm, one count of armed violence, and one count of aggravated battery with a firearm.
The charges against defendant stemmed from his involvement in a shoot-out on May 7, 1991, with two Round Lake Beach police officers, one of whom, Detective David Ostertag, was struck by a bullet and seriously wounded.
True
Defendant was sentenced to an extended term of 50 years’ imprisonment for the attempted murder of Detective Ostertag to run consecutively to a sentence of 30 years’ imprisonment for the attempted murder of the other officer, Detective Gary Bitler.
An appeal was taken, and this court reversed defendant’s convictions and remanded the cause for a new trial. See People v. Morley, 255 Ill. App. 3d 589 (1994). A new jury trial ensued on the same charges in September 1994 and concluded with guilty verdicts on all of the charged offenses. Defendant was sentenced to 50 years’ imprisonment on one count of attempted first-degree murder to be served consecutively to a 30-year term on the other attempt count. Defendant was also sentenced to 30 years’ imprisonment on one count of aggravated discharge of a firearm to be served concurrently with a 15-year term on the other discharge count, and concurrently with the other two attempt convictions. No sentence was entered on the armed violence count or the count charging aggravated battery with a firearm.
So David Morley gets 30 years more on his appeal. Hidden message: Shut up! We want you to stay in jail and if you protest, you will only get more time, not less!
In this appeal, defendant raises the following issues: (1) whether the trial court improperly refused defendant’s request to appoint a special prosecutor; (2) whether the trial court improperly refused to allow defendant to impeach two witnesses by omission; (3) whether the impeachment of a defense witness with his convictions of the same offenses as those for which defendant stood trial was improper; (4) whether the trial court erred in its refusal to instruct the jury on the defense of mistake of fact; (5) whether the content of the prosecutor’s closing argument deprived defendant of a fair trial; and (6) whether the trial court erred in finding the attempted murder of Detective Ostertag to have been accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, thus improperly imposing an extended term of imprisonment upon defendant. We affirm.
All of these issues were good issues for a new trial.
Very good issues indeed!
The facts of this case are set out in People v. Morley, 255 Ill. App. 3d 589 (1994). The following supplemental facts are provided to address the issues relevant to this appeal.
On September 22, 1994, arguments were heard on defendant’s motion for the appointment of a special prosecutor. The motion alleged, inter alia, that, after the appellate court reversed defendant’s conviction, the prosecutor at defendant’s first trial (and the prosecutor assigned to conduct the retrial), Steven McCollum, had a leading role in the decision to employ Ostertag as an investigator in the State’s Attorney’s office. Ostertag was a Round Lake Beach police officer at the time of the alleged offenses and was shot following a high-speed chase involving defendant and James Files. The motion sought an order to disqualify the State’s Attorney’s office.
McCollum, the chief deputy State’s Attorney for Lake County, testified that he was one of two assistant State’s Attorneys who were assigned to prosecute defendant in the first trial.
This section speaks for itself, with conflicting interest, due to the fact that Ostertag was the cop that was shot. So therefore, how can he be involved in anyway with the investigation?
So the police officer that was the victim in this case (Ostertag) is appointed by the prosecution as an investigator. How can this be an unbiased, objective trial???
McCollum is on the hiring committee for attorneys and investigators; the committee evaluates and recommends individuals for hiring to Michael Waller, the Lake County State’s Attorney, who makes the final hiring decision. McCollum’s duties include assigning cases to the investigators and supervising their performance.
McCollum testified that he prepared Ostertag for defendant’s trial because Ostertag was the victim.
In their own admission, they say that Ostertag was the victim.
In addition they say they “prepared” the victim for the trial. What does that mean?
McCollum specifically indicated to Ostertag that he should not be involved in any capacity other than as a victim. McCollum instructed Ostertag not to investigate or serve subpoenas. McCollum testified that Ostertag approached him with information received during a telephone call from a man named Bob Vernon, who wanted to provide information regarding James Files’ alleged involvement in the assassination of President Kennedy. McCollum testified that Ostertag conducted no other investigation into the case.
This should never have entered into Dave’s case.
Indeed! Because of this information, Mr. Ostertag realized who he had been “up against”.
On cross-examination, McCollum testified that the office of the State’s Attorney decided to reprosecute defendant after the appellate court reversed defendant’s conviction. He further testified that the decision to prosecute defendant was not based upon any personal relationship that McCollum had with Ostertag.
Ostertag testified that he was a special investigator in the State’s Attorney’s office and had been employed as such for the past 10 weeks. Prior to that he was an officer with the Round Lake Beach police department. Ostertag’s immediate supervisor at the State’s Attorney’s office is George Strickland, but he also works at the direction of McCollum. Ostertag testified that at McCollum’s request he contacted witnesses for new addresses.
He has previously admitted that he prepared Ostertag for defendant’s trial. He knew Ostertag and they were friends. He should have had no involvement in the case.
A key member of the prosecution (McCollum) is friends with the victim (Ostertag). He recommends the victim as an investigator in the case. Yet a motion of the defendant to appoint a special, impartial prosecutor is denied?
Prior to his employment with the State’s Attorney’s office, Vernon contacted Ostertag with his claims of Files’ involvement with the Kennedy assassination. Ostertag testified that he apprised McCollum of his discussions with Vernon and that McCollum never told him to cease gathering information from Vernon. McCollum told him, however, not to serve subpoenas, and Ostertag did not talk to witnesses about their anticipated testimony. Ostertag, on his own, requested federal “rap” sheets for defendant and Files.
Following argument of counsel, the trial court denied defendant’s motion, stating that no conflict existed at the time of the first trial and nothing presented in the motion hearing convinced him that a conflict existed as this second trial approached. Furthermore, the trial court stated that should Ostertag’s testimony deviate from his original testimony, the defense could attempt to impeach him. Therefore, no harm would result even if a conflict was to be determined.
They say no conflict, yet they admit there is a conflict, yet they say it would make no difference.
If someone understands the logic of reasoning by the prosecution, please enlighten us!
Nonpublishable material omitted under Supreme Court Rule 23. Defendant was tried before a jury on September 26-29, 1994. The jury returned verdicts finding defendant guilty of two counts of attempted first-degree murder, two counts of aggravated discharge of a firearm, one count of armed violence, and one count of aggravated battery with a firearm.
At a post-trial hearing on November 21, 1994, defendant’s motion for a new trial was denied, and the cause proceeded to sentencing.
Dave should have been granted a new trial.
The word “should” is based on a fair legal/justice system. However, one may start to wonder if that is a fair assumption in this case.
Following arguments, in stating that defendant’s conduct was brutal and heinous and indicative of wanton cruelty and in considering defendant’s prior convictions and criminal history, the trial court imposed an extended term sentence of 50 years’ imprisonment as to the attempted murder of Ostertag, to be served consecutively to a 30-year term as to the same charge in reference to Bitler. A 30-year extended term was imposed for the offense of aggravated discharge of a weapon (Ostertag), to be served concurrently with a 15-year term on the same offense with regard to Bitler. No sentence was entered for the offenses of armed violence or aggravated battery with a firearm.
On November 23, 1994, defendant’s motion for reconsideration of sentence was denied. Defendant timely appeals.
Defendant first contends that his motion for appointment of a special prosecutor should have been granted.
Yes – True.
Of course. The prosecution is as prejudiced as can be. Moreover there is a direct connection to the victim, who is also employed and hired by the prosecution, even as a direct participant in the case.
The basis of defendant’s motion is that the victim, Ostertag, was recommended for employment in the State’s Attorney’s office by the prosecutor, McCollum, and was subsequently hired as an employee of the State’s Attorney’s office. Therefore, defendant argues, a reasonable possibility existed that the prosecution would not exercise its discretionary power in an even-handed manner. The State argues that Ostertag was the victim and did not perform employee functions in this case.
So what about his assignment as an investigator for the case?
In this case the court and the prosecution were prejudiced.
Article VI, section 19, of the Illinois Constitution provides for the election of a State’s Attorney in each county. Ill. Const. 1970, art. VI, ยง19. The powers and duties of a State’s Attorney include commencing and prosecuting all actions, civil and criminal, in which the people of the State may be concerned. 55 ILCS Ann. 5/3–9005 (Smith-Hurd 1996). However, when a State’s Attorney is interested in any cause or proceeding, civil or criminal, which it is or may be her or his duty to prosecute, the court may appoint some other competent attorney to prosecute such cause or proceeding. 55 ILCS 5/3–9008 (West 1994). The purpose of this provision is to prevent any influence upon the discharge of the duties of the State’s Attorney by reason of personal interest.
Dave should have been appointed an attorney that was not tied to the court or prosecution.
See People ex rel. Hutchinson v. Hickman, 294 Ill. 471 (1920). The decision to appoint a special prosecutor rests with the discretion of the trial court. People v. Polonowski, 258 Ill. App. 3d 497, 503 (1994). A special prosecutor can be appointed at any stage of the case. Baxter v. Peterlin, 156 Ill. App. 3d 564, 566 (1987).
The conflict asserted here is based on McCollum’s professional relationship with Ostertag.
VERY True
Initially, we note that the trial court clearly had the discretion either to appoint or deny the appointment of a special prosecutor. The issue thus becomes whether McCollum was “interested” within the scope of the statute.
The State denies that McCollum was “interested” or had a conflict of interest as such.
This one is a JOKE.
Our supreme court has held that the only situations in which the Attorney General or the State’s Attorney could be considered to be interested so as to authorize the appointment of a special Attorney General or State’s Attorney are where (1) she or he is interested as a private individual; or (2) she or he is an actual party to the litigation. Environmental Protection Agency v. Pollution Control Board, 69 Ill. 2d 394, 400- 01 (1977); see also Suburban Cook County Regional Office of Education v. Cook County Board, 282 Ill. App. 3d 560, 569 (1996).
Defendant also cites People v. Lewis, 88 Ill. 2d 429 (1981), and People v. Polonowski, 258 Ill. App. 3d 497 (1994), for support. However, the Lewis and Polonowski holdings are limited to conflicts based on counsel’s personal relationships.
Such as Ostertag and McCollum.
Because defendant contends that McCollum’s conflict is based on a professional relationship with a witness, and not a personal relationship, we decline to analyze under the Lewis and Polonowski line of cases. Furthermore, neither of these cases imposed a per se rule which required the disqualification of counsel on the basis of an acquaintance with a witness.
In the instant case, McCollum is not an actual party, nor does the record support a finding that McCollum has a private individual interest in the litigation. The words that McCollum used to describe Ostertag, a “very nice man,” a “colleague,” and a “very good and professional police officer,” do not rise to the level of a personal interest. Cf. Baxter v. Peterlin, 156 Ill. App. 3d 564 (1987). Further, at the pretrial hearing, Ostertag testified that he had been employed at the State’s Attorney’s office for approximately 10 weeks; he only checked the current addresses of some of the witnesses; he did not discuss their testimony with them; he did not interview them; he did not serve any subpoenas; he made no diagrams; and he did not handle any physical evidence.
There was no private investigator hired to show that the two of them were friends.
The fact alone that Ostertag was the victim in the case, should have been more than sufficient to deny him any role in the prosecution.
Regarding the communications between Ostertag and Vernon, Ostertag testified that it was Vernon who initially contacted him regarding Files’ involvement with the Kennedy assassination, and this was done prior to his employment with the State’s Attorney’s office.
The State’s Attorney’s responsibilities are not limited to representing the people of the State who are not employed by the State of Illinois or some other governmental entity. These prosecutorial responsibilities will occasionally include prosecuting cases where victims and witnesses are employed by a state, county, or local agency, including, but not limited to, the State’s Attorney’s Office. Furthermore, the State’s Attorney does not represent individuals or specific witnesses during the course of criminal prosecutions. Criminal prosecutions are commenced in the name of and on behalf of the people of the State of Illinois.
With no dividing line, they make the rules for both sides.
There are rules and dividing lines in the american justice system. They were just not practiced in this case.
To hold that a special prosecutor must always be appointed whenever a victim or witness is employed by a state, county, or local agency would be an illogical, as well as impractical, encroachment upon the authority of a constitutional officer.
Accordingly, we hold that the trial court did not abuse its discretion in denying defendant’s motion for the appointment of a special prosecutor.
They did abuse their discretion in denying defendant’s motion for the appointment for a special prosecutor.
If James Files would not be connected to the case, David Morley would probably have been a free man already. It seems he is severely screwed by the political imprisonment of James Files. And all he did was defend his life.
Nonpublishable material omitted under Supreme Court Rule 23.
For the foregoing reasons, defendant’s convictions and sentence are affirmed.
Affirmed.
GEIGER, P.J., and INGLIS, J., concur.
