Arguments made after rare midtrial appeal halted case against 2 Illinois’ ex-Cook County assistant state’s attorneys

CHICAGO — Months after a rare midtrial appeal halted a case against two former Cook County assistant state’s attorneys charged with misconduct, lawyers Tuesday sparred before a panel of appellate court justices judges over the legal issues that brought the case to a halt in October.

Nicholas Trutenko, 69, 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 key 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.

The trial was underway before Lake County Judge Daniel Shanes, who was assigned the case after the entire Cook County judiciary was recused, when the special prosecutors handling the case asked for an appeal after Shanes barred large portions of testimony from a key witness.

Attorneys for both parties launched their oral arguments at the Michael Bilandic Building in Chicago, fielding questions from justices of the 1st District Appellate Court of Illinois. At issue is the bedrock legal doctrine of attorney-client privilege, which protects communications between clients and their lawyers from disclosure.

Shanes had ruled that Paul Fangman, an assistant state’s attorney assigned to the Civil Actions Bureau of the Cook County state’s attorney’s office, had an attorney-client relationship with Trutenko in the weeks leading up to his testimony during Wilson’s 2020 trial.

Because of that, Shanes found that Fangman was barred from certain testimony, a blow to the prosecution’s case.

Robert Hochman, arguing the case for the team of special prosecutors, argued that Fangman represented the Cook County state’s attorney’s office, not Trutenko in a personal capacity. Fangman had an obligation to report back to his superiors, he said, so conversations between him and Trutenko would not have been kept confidential.

“Confidentiality is the heart of attorney-client privilege,” Hochman said.

Justice Mary Mikva asked Hochman if he believes Fangman had an obligation to explicitly clarify to Trutenko that he did not represent him personally.

“You’re dealing with an experienced Cook County state’s attorney,” Hochman said in response, adding that it was “quite clear” that there was no personal attorney-client relationship.

Defense attorneys representing Trutenko and Horvat had vigorously objected to the pause in proceedings, arguing that their clients have a right to a speedy trial. 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.

During his arguments, Brian Sexton, an attorney who represents Trutenko, argued that the facts of this particular case are unique.

“Clearly this is a highly unusual case,” he said.

Sexton argued that Fangman’s “conduct contradicted” any notion that he did not personally represent Trutenko.

The justices appeared skeptical of arguments that Fangman represented Trutenko in a personal rather than an official capacity, repeatedly questioning Sexton about Fangman’s responsibility to report his dealings with Trutenko to his superiors at the office.

Special prosecutors had noted that the state’s attorney’s office, which they maintain is the real client, had waived its privilege to allow Fangman to testify.

Terry Ekl, an attorney for Horvat, briefly argued that his client, who as a civil assistant state’s attorney represented Trutenko during the third Jackie Wilson trial, would not be affected by Fangman’s testimony and shouldn’t have been part of the appeal. Ekl maintained Horvat’s right to a speedy trial has been violated.

Even before the trial-halting appeal, the proceedings were unusual with assistant state’s attorneys facing charges in connection with a wrongful conviction case, particularly one with twists and turns over three criminal trials.

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, 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.

During his third trial in 2020, special prosecutors trying Wilson dropped the charges after allegations surfaced that Trutenko, who originally prosecuted Wilson and was called as a defense witness in the latest trial, lied under oath about the whereabouts of a witness against Wilson, with whom Trutenko had a longtime friendship.

Trutenko at the time was represented by then-Cook County assistant state’s attorney Horvat. The indictment alleged that Horvat asked a special prosecutor not to ask Trutenko about that relationship and failed to disclose that Trutenko “had concealed information” about it.

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

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