O'Neill Burke rejects bid for special prosecutor to target ICE, says it threatens to 'thwart' justice

Cook County's top prosecutor argued Tuesday that a bid to name a special prosecutor to investigate the federal agents behind last fall’s Operation Midway Blitz amounts to a “frivolous” and “heavy handed” attempt to usurp her authority — and could come at a cost.

State’s Attorney Eileen O’Neill Burke denied that any conflict exists to warrant the move. She said she’s not intimidated by “vague” threats of political retaliation. And she said a broad coalition’s argument to the contrary actually threatens to “thwart” justice.

“Acting outside the bounds of the law comes with a price,” O’Neill Burke argued. “And that price here would be compromising the prosecution’s ability to obtain justice for victims and the community.”

The commentary came in a 24-page response to the high-profile bid for a special prosecutor, launched earlier this month by a coalition of more than 200 elected officials, clergy, journalists and attorneys. They say O’Neill Burke has turned a “blind eye” to myriad crimes committed by federal agents during the Trump administration’s aggressive deportation blitz last fall.

The alleged crimes include murder, assault, perjury and even conspiracy. The coalition’s March 12 petition seeking a special prosecutor prominently cited the September killing of Silverio Villegas Gonzalez and the October shooting of Marimar Martinez, both at the hands of federal agents.

Now O’Neill Burke has submitted the most substantive response to her critics to date. She insisted any investigation must be conducted by law enforcement, but also noted that any prosecutor “should be loath to provide information on any ongoing investigation.”

“Petitioners are claiming that the state’s attorney has an actual conflict because she is not abdicating her prosecutorial discretion to elected officials and the public or succumbing to political pressure,” she argued in her filing.

O’Neill Burke again pointed to a 2017 Illinois Supreme Court decision she says limits her ability to investigate the agents. But coalition attorney Steve Art insisted that every special prosecutor “takes on the role of an elected state’s attorney and investigates and prosecutes” a crime.

Art said O’Neill Burke’s argument is “exactly” why a special prosecutor is needed. The coalition he represents has been “asking for justice for months,” he said.

“Instead of getting any commitment to do justice — to investigate, to prosecute — all we get from the state’s attorney is legal obstacles,” Art told reporters Tuesday.

O’Neill Burke’s deputies filed her response to the petition during a brief hearing Tuesday before Cook County Circuit Judge Erica Reddick, the presiding judge of the criminal division. Lawyers are due back April 10 in Reddick’s courtroom at the Leighton Criminal Courthouse.

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

Prosecuting federal agents in state court would require showing they acted unreasonably while fulfilling their duties. Meanwhile, prosecutors like O’Neill Burke are entrusted with discretion to choose which cases to pursue. The coalition argued O’Neill Burke’s impartiality “has been irrevocably tainted” by her failure to respond to public demands for an investigation, though.

In her filing Tuesday, O’Neill Burke repeatedly cited the Illinois Supreme Court ruling addressing the power of a state’s attorney to investigate alleged crimes.

The court found the duty is “limited to circumstances where other law enforcement agencies inadequately deal with such investigation … or where a law enforcement agency asks the state’s attorney for assistance.”

“Petitioners make no allegation that the state’s attorney has been presented with any credible evidence from law enforcement which she refused to charge,” O’Neill Burke wrote Tuesday, “but instead fault her with not investigating criminal conduct, where they have not established it is her duty to investigate.”

She said the coalition failed to find any “specific personal interest” creating a conflict. She rejected the idea that she’s susceptible to intimidation by President Donald Trump’s Justice Department. And in any event, she said no specific threat of retaliation has been made.

“It is common for people to threaten the state’s attorney or her assistants,” O’Neill Burke wrote, “and those threats generally do not engender any concern from outside parties or prompt the filing of a petition to appoint a special prosecutor.”

O’Neill Burke criticized the coalition for “boldly” seeking input in the process of selecting a special prosecutor. She also took a shot at the law firm leading the charge, Loevy and Loevy, for its handling of separate litigation in federal court last fall.

The firm helped secure an order from U.S. District Judge Sara Ellis restricting the feds’ use of force during Midway Blitz. But later, after the 7th U.S. Circuit Court of Appeals signaled the feds were likely to prevail in the end, the firm sought to dismiss the case voluntarily.

The appeals court formally vacated Ellis’ order earlier this month, citing in part the voluntary dismissal.

“These times call for serious people,” O’Neill Burke wrote Tuesday. “Not those who cut and run ‘at the first sign of trouble.’”

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