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STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE 23 JUDICIAL CIRCUIT. DEKALB COUNTY PEOPLE OF THE STATE OF ILLINOIS, ) ) Plaintiff, ) ) vs. ) No: 11-CF-454 ) Honorable William Brady JACK D. MCCULLOUGH, ) ) Defendant. ) 3 NOTICE OF FILING = To: State’s Attomey Richard Schmack Gabriel Fuentes, Esq, = DeKalb County State’s Attorney's Office Jenner & Block LLP 2 200.N. Main Street 353 N, Clark St. a ‘Sycamore, IL 60178 Chicago, IL 60654 F: (815) 895-7101 gfuuentes/@jenner.com PLEASE TAKE NOTICE that on_1 os t Z ‘(G_, we filed with the Clerk of Circuit Court of DeKalb County this NOTICE OF FILING and SECOND AMENDED MOTION FOR SPECIAL PROSECUTOR, which have been served upon the above-mentioned attorneys at the above addresses. Bruce Brandwein a BRANDWEIN & SMOLIN Attorneys for: Charles Ridulph race E, Brandwein Address; 20 South Clark Street - Suite 410 City: Chicago, Illinois 60603, ‘Telephone: 312/853-0008 A.R.D.C. No: 0280127 PROOF OF SERVICE VIA HAND DELIVERY, ELECTRONIC MAIL AND U.S. MAIL ‘The undersigned hereby certifies that copies of this NOTICE OF FILING and SECOND INDI IN TK MINT SPECIAL PROSECUTOR were sent via electronic mail and (LS. mail to Gabriel Fuentes, Esq, and hand delivered to Richard Schmack on this 7 day of, 52016 ied fruce E Brandwyetn MAUREEN A. JOSH, CLERK OF THE CIRCUIT COURT OF DEKALB COUNTY, ILLINOIS, STATE OF ILLINOIS INTHE CIRCUIT COURT OF THE 23% JUDICIAL CIRCUIT DEKALB COUNTY PEOPLE OF THE STATE OF ILLINOIS, ) ) Plaincift, ) ) vs. ) No: 11-CF-454 } Honorable William Brady JACK D. MCCULLOUGH, ) ) Defendant. ) AFFIDAVIT "The undersigned after being duly swom states as follows: 1, That my name is Julie Trevarthen, nS:| Hd Lt AVN S102 “AtNagg EW! 2, ‘That | am an attorney licensed to practice in the State of Iino 3. That | was a DeKalb County Assistant State's Attomey assigned to prosecute Jack ‘McCullough under case number 11-CF-454, 4, That Ihave reviewed the Second Amended Motion to Appoint Special Prosecutor and the facts and allegations conceming my testimony therein are true to the best of my knowledge. Further the Affiant sayeth not, Subscfibed & Sworn to before me this 2016. STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE 23" JUDICIAL CIRCUIT DEKALB COUNTY PEOPLE OF THE STATE OF ILLINOIS, ) ) Plaintiff, ) d vs. ) No: 11-CF-454 } Honorable William Brady JACK D. MCCULLOUGH, a) ) Defendant. i} AFFIDAVIT “The undersigned after being duly swom states as follows: 1. That my name is Charles Ridulph. 2, That Lam the brother of the victim Maria Ridulph, 13. ‘That { have reviewed the Second Amended Motion to Appoint Special Prosecutor and the facts and allegations concerning my testimony therein are true to the best of my kaowledge Further the Affiant sayeth not. Charles Ridulph Date Subggribod & Sworn to before me this LT day of, a » 2016. STATE OF ILLINOIS IN THE CIRCUIT COURT OF THE 23" JUDICIAL CIRCUIT DEKALB COUNTY PEOPLE OF THE STATE OF ILLINOIS, ) ) Plaintiff, ) ) vs. ) No: TL CR454 } Honorable William Brady JACK D. MCCULLOUGH, ) ) Defendant. ) SECOND, :D MOTION TO APPOINT SPECIAL PROSECUTOR NOW COMES Charles Ridulph, by and through his ettomey Bruce E, Brandwein, and pursuant to 55 ILCS 5/3-9008 requests this Court to appoint a special prosecutor on the captioned case and in support thereof siates as follows: Background ‘Mr. Ridulph filed an Amended Motion to Appoint Special Prosecutor, a hearing was held on April 22, 2016 at which time Judge Brady denied the Motion to Dismiss the Petition for a Special Prosecutor granting leave to file a second amended petition to allege facts that would support an actual conflict with the State's Attomey and setting this matter for an evidentiary hearing on June 23,2016. Argument Mr. Ridulph would proffer the following to support his Motion to Appoint Special Prosecutor. This proffer would be in summary as to what each witness would testify to and would be more fully developed at the evidentiary hearing, ‘The testimony of witnesses Julie Trevarthen and Charles Ridulph would establish the following evidence: Julie Trevarthen would testify that she was an Assistant State's Attorney assigned to prosecute Jack McCullough. During the trial of Mr. McCullough she had occasions to see Richard ‘Schmack the then candidate for State's Attomey in DeKalb County present in the courtroom during the trial of Mr. McCullough. Ms. Trevarthen would further testify that she saw Mr. Schmack approach and speak with the Defendant's atiomeys during the trial. Further, she heard Mr. Schmack slate that if he is elected as State's Attomey he would dismiss the murder charges as Mr. ‘MeCullough is innocent and “this is ridiculous, the FBI cleared him in 1957”. Ms. Trevarthen never spoke to Mr. Schmack about this case nor shared any information about the case with Mr. Schmack while Mr. Schmack was running for State’s Attomey. After his election, Mr. Schmack never spoke toher about the case or any of the evidence. Ms. Trevarthen would further testify that she saw on Mr. Schmack’s Facebook page an article Mr. Schmack posted indicating that Mr. McCullough was innocent and this prosecution was politically motivated. Mr. Charles Ridulph would testify that after Mr. Schmack was elected to State’s Attorney, he met with Mr Schmack numerous times to discuss this case. AL the first mesting on or about May 1, 2014, Mr. Schmack told Mr. Ridulph that he was not familiar with the file but if the case was ever retumed to him he would not retry it and that the original trial was full of errors. Mr. Ridulph would further testify that he was upsct after hearing this and more meetings were arranged so Mr. Schmack could review the file and evidence. During the meeting on or about October 25, 2015, Mr, Schmack cited a phone call he claimed was made by Mr, McCullough at or near the time of the abduction and that a Ms. Jan Edwards, the then-girlftiend of Mr. McCullough ‘was with him some time that evening at her home in Sycamore. When Mr. Rudulph attempted to show 1) that Ms. Edwards said that she cannot be sure if she was with Mr. McCullough on that date, Mr. Schmack stated it was not relevant because of the time frame, and 2) that there vas no evidence to prove that McCullough made that call, Mr. Schmack ended the conversation. When Mr. Schmack requested Mr. Ridulph to come in to discuss this further, and that Mr, Sehmack did not ‘want to discuss this with the investigators from the Illinois State Police who handled the case, Mr. Ridulph refused to come in to discuss the case further with Mr. Schmack, ‘The then-candidate for State’s Attorney had made up his mind that Mr. McCullough was innocent without being privileged to the State’s evidence and after being elected followed through on his promise to drop charges against Mr. McCullough. Ths predisposed mindset of Mr. Schmack has created a conflict of interest between his duty as State’s Attorney and his campaign promise not 10 go forward with this case. As this Court is aware, the trial court found Mr, McCullough guilty and the appellate court affirmed. As cited in Mr. Ridulph's prior motion, when the public's ‘confidence in the impartiality and integrity ofthe criminal justice system is called into question, the appointment of a special prosecutor may be necessary. People v. Lang, 346 ItLApp.3d 677, 682 2" Dist. 2004), “Although removal of the duly elected State's Atlomney from a case impacts ‘constitutional concerns, the appearance of impropriety and institutional conflict of interest present here warrants the appointment of independent counsel to maintain the public’s confidence in the impartiality and integrity of ovr criminal justice system.” Jn re- Appointment of Special Prosecutor, 2011 Mise, 46, Judge Toomin’s Decision on David Koschman. As indicated by the above anticipated tesmony of Ms. Julie Trevarthen and Mr, Charles Ridulph, Attomey Schmack as State's Attorney has put himself in a position that places the public ‘must in the criminal justice system into question. A similar situation was present in the case of People v Charles Bickerstaff, 403 l.App.3d 347 (2% Dist, 2010). In that case, the then-candidate for State’s Attorney made extrajudicial statements about defendant's prosecution for a sexual assault in connection with his campaign for State's Attomey, This led the defendant to ask for a special prosecutor after the candidate was then elected to office. The trial court denied the defendant's request, the appellate court affirmed. The appellate court found that the comments made by the candidate attomey were that the current State’s Attorney had not done his job correctly. However, at no time did the candidate for State’s Artomey speak towards the guilt or innocence of the defendant, so there was no conflict. People v. Bickerstaff, 403 II App.3d 347 at 353 (2010). In the instant matter, we have just the opposite. Mr. Schmack had voiced his opinion prior to ‘being elected that Mr. McCullough was innocent and, if elected, he would dismiss the charges ‘Once elected, Mr. Schmack did just that, indicating that the State's Atomey would not carry out his duties in an unbiased manner. Itis unnecessary thatthe prosecuting attomey be guilty of an attempt to betray confidence, it is enough if it places him in a position which leaves him open to such a charge. People v. Courtney, 288 IIl.App.3d 1025 at 1032 (1997). ‘Mr, Ridulph submits that the State's Atomey has created a conflict of interest preventing a fair and impartial investigation. The only just solution would be the appointment of a special ‘prosecutor to review Mr, Schmack’s findings to determine whether a new trial should be held, ARD.C. No.: 0280127 Respectfully Submitted, Bruce E. Brandwein BRANDWEIN & SMOLIN LLC BRANDWEIN & SMOLIN LLC 20 South Clark Street, Suite 410 Chicago, IL 60603 (312) 853-0008 [re E. Brandwein