Seeking special prosecutor to target ICE, coalition says O'Neill Burke turned 'blind eye' to feds' violence

Cook County State’s Attorney Eileen O’Neill Burke has turned a “blind eye” to “egregious acts of violence” by the federal agents behind last fall’s Operation Midway Blitz, a new coalition of more than 200 elected officials, clergy, journalists and attorneys argued in a court filing Thursday.

Despite demands that agents once led by U.S. Border Patrol Cmdr. Gregory Bovino be prosecuted for state crimes — like murder, assault, perjury or even conspiracy — O’Neill Burke has “never stated publicly that she has any intention to investigate these crimes,” they said.

That may be for fear of retaliation from President Donald Trump, they added.

O'Neill Burke denies it. But that’s the argument made in a newly filed petition that makes the most aggressive pitch yet for a special prosecutor to investigate the agents who descended upon Chicago last fall. It was filed by the Loevy and Loevy law firm on behalf of a coalition that includes U.S. Reps. Jesus “Chuy” Garcia and Delia Ramirez, both Democrats, and former U.S. District Chief Judge Ruben Castillo, who was appointed to the bench in 1994 by President Bill Clinton.

"I understand their frustration," O'Neill Burke said at an unrelated news conference Thursday, "and I understand that people want somebody to do something. I get that, but us violating the law doesn't get us where we need to go. I took an oath that I will follow the law in the Constitution, and that is more important to me than any meritless petition."

The petition was filed Thursday in Cook County Circuit Court before Judge Erica Reddick, the presiding judge of the criminal division, ahead of a noon news conference.

“Federal agents killed and maimed people, terrorized communities, and unleashed extreme force and chemical weapons indiscriminately against law-abiding residents who posed no threat to their safety,” the petition states, according to a copy obtained by the Chicago Sun-Times.

Meanwhile, “other state prosecutors in Illinois and around the country have initiated investigations into similar criminal conduct by federal agents … or announced their intention to investigate such conduct,” according to the petition.

It’s unclear whether a path to a special prosecutor exists for the coalition under the law. But O’Neill Burke says the petition will only make it more difficult for her office “to prosecute and win convictions” against agents who committed crimes during the deportation campaign.

“The stakes are too high for us to get this wrong,” O’Neill Burke, a Democrat, said in a statement earlier this week, “and I will strenuously oppose this petition.”

Still, it could increase the pressure on O’Neill Burke, even if unsuccessful. Loevy & Loevy used its lawsuit in federal court last fall to secure strategic wins, like court appearances and depositions from federal officials, as well as the public release of a tranche of records.

That’s even though the case was ultimately dismissed, and a federal appeals court vacated a sweeping preliminary injunction handed down by U.S. District Judge Sara Ellis.

Under the law, the new petition could lead to a hearing over whether O’Neill Burke has an actual conflict of interest. The petitioners also asked the judge for permission to “present a list of candidates” for special prosecutor or to “have input into the selection process.”

The coalition includes the Chicago News Guild, which represents journalists at the Chicago Sun-Times.

O’Neill Burke has publicly decried the actions of the Trump administration but maintains that her office is limited in its ability to prosecute on-duty federal agents.

She released her own guidance for pursuing these sorts of cases last month after criticizing a plan put forth by Mayor Brandon Johnson, which her office argued raised major concerns of political interference.

Under her guidance, a law enforcement agency would lead a criminal investigation by collecting and preserving evidence. Then, prosecutors would conduct an independent review of all evidence and make charging decisions.

However, prosecuting federal agents in state court would require showing that they acted unreasonably while fulfilling their duties.

As of this week, O’Neill Burke’s office said no local agencies had brought cases against any on-duty immigration officials.

Prosecutors are entrusted with discretion to choose which cases they pursue. But the coalition argued O’Neill Burke’s impartiality “has been irrevocably tainted” by her failure to respond to public demands to investigate Midway Blitz agents.

“The residents of Cook County, citizens of Chicago, and elected officials at local, state, and federal levels have formalized public demands for the fair, impartial, and unencumbered investigation of allegations of criminal conduct by federal agents,” the petition states. “The state’s attorney has decided not to initiate any investigation.”

The group noted that O’Neill Burke works regularly with federal law enforcement. It also pointed to the Justice Department’s investigations of Trump’s political foes, including New York Attorney General Letitia James and Fani Willis, the district attorney in Fulton County, Georgia.

“At minimum, the threat of retaliation reduces public confidence that State’s Attorney [O’Neill Burke] will exercise her discretion fairly when determining whether to investigate or bring charges,” the coalition wrote in its petition.

“To expect her to investigate and prosecute federal agents who committed crimes in her own jurisdiction is highly improbable, as evidenced by her own inaction,” it added. “An independent special prosecutor, shielded from political conflict, is therefore necessary.”

The petition prominently recounts the Oct. 4 shooting of Marimar Martinez, as well as the Sept. 12 killing of Silverio Villegas González. In both instances, the coalition argued that agents “lied” about what happened.

Christopher Parente, Martinez’s attorney, recently said there is an ongoing investigation into Border Patrol agent Charles Exum, who shot Martinez five times on the Southwest Side. The investigation is being handled by the U.S. attorney’s office in South Bend, Indiana, Parente said.

It’s unclear where that investigation stands, though. Parente told the Sun-Times, "we remain hopeful that the federal government will do its job and conduct a full and fair investigation of Marimar's shooting."

"If the federal government fails to carry out its mission as promised in Marimar's case, Cook County must be empowered to pick up the mantle of leadership and ensure justice is done for Marimar and all other victims of federal agent misconduct," Parente said.

The coalition’s petition catalogs alleged batteries, assaults, kidnappings and other violence at the hands of federal agents. It even makes a case for conspiracy charges, alleging that agents “undertook coordinated efforts over the course of hours, days, and months to commit serious crimes against the citizens and residents of Cook County.”

Though court precedent shows that a “political alliance” can create a conflict of interest, it also notes that a petitioner must plead “specific facts” to show a state’s attorney “would not zealously represent” the people.

A petitioner could also show that a state’s attorney has abandoned her duty through “an impropriety or insufficiency in the state’s attorney’s investigation,” according to past rulings.

Special prosecutors have been used in the past in response to potential conflicts of interest or alleged misconduct within the Cook County state’s attorney’s office. Often they’re appointed to investigate and prosecute specific cases.

In 2016, a special prosecutor took over the murder case against Chicago Police Officer Jason Van Dyke, who fatally shot 17-year-old Laquan McDonald. Civil rights lawyers had long questioned former Cook County State’s Attorney Anita Alvarez’s objectivity in the case and criticized her for taking more than a year to charge Van Dyke. But a special prosecutor was only appointed after Alvarez lost re-election and recused herself from the case.

In 2019, a special prosecutor was assigned to reopen the Jussie Smollett case and investigate former Cook County State’s Attorney Kim Foxx’s handling of the charges. The special prosecutor secured a conviction against Smollett for lying about an alleged hate crime, but it was overturned years later.

There have also been examples of special prosecutors given much broader assignments, though. In 2002, a special prosecutor was appointed to investigate decades of allegations against former Chicago Police Cmdr. Jon Burge. The special prosecutor found that Burge and his crew had tortured nearly 200 people during the 1970s to the 1990s. But the statute of limitations had run out on many of the crimes, making them unable to prosecute.

Neither the reporters nor editors who worked on this story — including some represented by the News Guild — have been involved in the litigation described in this article.