With all due respect to one of my least favorite Ward & Jones listeners (I kid you Jim!), covering a vast abrogation of a Kane County defendant’s rights is never “boring.” It’s one of the most important things we can possibly do.
They may come for you next, sir!
Government overreach starts right here. Kane County may well be the place where our rights get silently stripped away while we obliviously applaud the end result. And Kane County is the place it needs to stop.
They may not have answered my questions, but it is encouraging to know that the inquiries regarding the “accidentally” obtained Daniel Rak murder case emails certainly caught State’s Attorney Joe McMahon’s and top prosecutor Joe Lulves’ attention.
How do I know this? Because I just spent a half-hour at the Circuit Clerk’s office obtaining an affidavit from Chicago’s Elijah Ltd, a company who specializes in “computer forensic data collections and investigations.”
You see, instead of doing the right thing and simply admitting they’re wrong, McMahon and Lulves doubled down on being “right.” They hired Elijah Ltd. to prove that SAO attorney Deb Lang did not read any privileged public defender emails.
This is one of those rare occasions where there are three vast ironies. First, unless you have a camera on them 24/7, you can’t “prove” somebody didn’t do something. Second, the fact that yet another party got their hands on those emails destroys attorney-client privilege a second time. And third, the affidavit actually proves everything I’ve already told you is true! (Read it right here affidavit001 )
At a time when folks seem to have lost faith in journalists, I can’t tell you how much Elijah’s support means to me! Meanwhile, let’s go over the details of that motion which generally fall somewhere between the truth and the kind of guesswork that gives “beyond any reasonable doubt” a really bad name.
1. They admit that Ms. Lang “accidentally” got ahold of privileged public defender emails.
But instead of summarily stopping that email review, deleting all the emails right then and there, and immediately reporting it to her bosses, Ms. Lang just kept going. That’s a special kind of arrogance that should mean the abrupt end of this case. As my co-host Larry Jones said, if a police officer got their hands on privileged information, the judge would toss the case faster than Milo Yiannopoulos from a bris. The officer could swear he didn’t read a thing til he was blue in the face and it wouldn’t matter. But all an SAO attorney has to do is wave a magic affidavit wand and it’s all good?
2. Ms. Lang deleted the emails – but NOT from the deleted items folder.
So they sat on her computer from September 2, 2016 to January 5, 2017 for anyone to review. I may only play an attorney on TV, but even I know a chain of custody problem when I see one. Firms like Elijah Ltd. rely on catching regular folks red handed. I’m not saying it happened, but there are people at the Kane County IT department who could make your entire life disappear. Not even your wife would be able to find you!
3. Elijah Ltd. didn’t say a word about those PD emails NOT appearing in other threads
And that’s been my contention from the start. Even if Ms. Lang half-deleted every PD email upon seeing the header, that doesn’t mean she didn’t see that same email in the middle of another thread.
Furthermore, I submitted my questions to the SAO on Feb 23 and Elijah’s affidavit was submitted on Feb. 27. They answered every single one of my questions but this one! You may not be able to prove that someone didn’t do something, but the failure to say something often speaks volumes.
4. “Although this does not conclusively rule out that the PD emails had been reviewed.”
That single statement, in Elijah’s own words, renders their entire affidavit worthless. To make matters worse, Elijah Ltd. adds, “If those files had been reviewed, saved and/or printed, there is a reasonable likelihood that the process of doing so would have left forensic residue…”
Yeah! And there’s a reasonable likelihood that my wife is gonna kick my sorry ass out any day now, but it never seems to happen!
Apparently Elijah believes this is a civil case where a preponderance of the evidence can carry the day. Unfortunately for the Kane County State’s Attorney’s office, criminal courtrooms don’t rely on probabilities.
Never mind that, though Elijah applied reasonable forensic methods, as a computer expert myself, I could effectively argue that their tools weren’t nearly up to this specific task all day long.
Once again! The bottom line is not whether SAO attorney Deborah Lang did or did not read those privileged PD emails. It’s that she could’ve read those privileged PD emails – as a result of a process initiated by State’s Attorney Joe McMahon, no less! And no one on this planet can prove she didn’t.
And that’s all that matters folks! The Rak case should dismissed because no defendant should have to face the full weight of the people and any “accidental” subterfuge on the part of the State’s Attorney’s Office.
If the laws are good enough for you and me, they should be good enough for the State’s Attorney too. Let’s hope Judge Tegeler does the right thing and tosses this one. Trust me, I’ll keep you posted!