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On St. Patrick’s Day, 2012, Fairview Heights Police Sgt., James Krummrich, was arrested for driving under the influence. There was a hearing to rescind the administrative suspension of Krummrich’s driver’s license which was presided over by Judge Brian A. Babka.
I was pulled over by Fairview Heights Police on Feb. 17, 2009, because I was “weaving within my own lane”. Officer Joshua Alemond is the one who followed me while allegedly weaving, and upon my being stopped, I was beaten and Tased by Officer Aaron Nyman. There was never a request for a blood alcohol analysis or field sobriety test. I was not even charged or arrested for driving under the influence, but arrested regardless.
Here, Krummrich is involved in an accident, admits to drinking, and is observed by another officer to appear intoxicated. In my situation, the then Circuit Clerk, Brendan Kelly, fraudulently filed a civil case on my behalf which ended up in front of Babka. The reason for that case is because I swore to criminal complaints that I wished to present to a judge for the purpose of having arrest warrants issued for the crimes committed by Alemond and Nyman. Kelly, who had no right to even touch the complaints, filed a miscellaneous civil case on my behalf. When I appeared before Babka I raised this very issue and he ignored the irregularity.
One of the fatal flaws in Krummrich’s case is the failure of the Belleville Police Officer Anthony Branchini to request Krummrich to take a field sobriety test. Could this possibly shoddy police work on the part of Branchini? Very possible, but after how many arrests for DUI does a cop not request a field sobriety test? This is almost second nature. Although, I have to admit, this is not the first time Branchini has exhibited less than compentent ability in building a case. If you are intetested, then look up Ticket No. 0232640 issued by the Belleville Police Department on June 24, 2006 and read the Officer Narrative Report signed by Branchini. For a dumbed-down read of how the Illinois DUI laws work, read this piece from the Secretary of State, DUI Factbook 2012.
Babka, having possession of sworn criminal complaints by way of the fraudulently filed civil case by Brendan Kelly still played dumb and had me explain why I felt a private individual could bring charges directly to a court. I write about this in detail in another post, but essentially Babka first had me present the case law I was relying upon, then appear again to tell me my case law was good, albeit old, and fatally flawed because it referred to “magistrates”. I then wrote a lengthy brief regarding magistrates and how they are essentially the same as Associate Judges, courtesy the Illinois Constitution of 1970, but the duties still applied, which meant hearing complaints and issuing arrest warrants. Following Babka’s dismissal of the case I wrote a motion to reconsider because he refused to, or was incapable of, understanding the difference between issuing arrest warrants based upon complaints and commencing a prosecution.
Babka will not go against cops, so it seems, and will even disregard testimony of another cop in prosecuting a cop when there is sufficient cause to believe the officer to be intoxicated. In my opinion, Babka is a fraud, liar, and incompetent boob. He knew, or should have known, the difference between a magistrate and an associate judge, realize the case before him was a fraud, and act upon sworn criminal complaints. Instead, he obfuscated, dissembled, and ignored violations of law while committing malfeasance on his own.
With this story, Krummrich, a member of the same police department that alleged that weaving within one’s own lane was probable cause for initiating a traffic stop for driving under the influence, was involved in more serious circumstances for the same offense and given a pass by a drunk cops best friend, Brian A. Babka.
This story has been followed by the Belleville News Democrat. I’ll post links and text from those stories here, along with my commentary, since the News Democrat has blocked me from posting comments to their stories due to my “proselytizing”. That said, what follows is the articles from the BND.
Fairview Heights cop arrested for DUI; sergeant crashes car in Belleville
BY KEVIN BERSETT – News-Democrat -Tuesday, March 20, 2012 at 5:25 AM
A Fairview Heights police sergeant was arrested for DUI on Saturday in Belleville.
James Krummrich, 47, was booked after he was involved in a traffic accident about 5:45 p.m. in the 900 block of North Illinois, according to Belleville police. He allegedly appeared intoxicated, so he was taken into headquarters where he was released after posting bail.
Krummrich declined to comment for this story.
Krummrich, a 15-year police veteran, has been suspended with pay pending the outcome of an internal investigation, Fairview Heights Police Chief Nick Gailius said. If the investigation turns up any evidence he did something unbecoming of an officer, his case will be turned over to the city’s Board of Police and Fire Commissioners, the chief said.
“It’s important to note that everyone is presumed innocent until proven guilty in court,” Gailius said.
Gailius would not comment on whether Krummrich had ever been previously disciplined by the department. Krummrich was off-duty and not in his police vehicle when the crash occurred, Gailius said.
“We are very thankful that no one was injured in the accident,” Gailius said.
No additional information about Krummrich’s arrest or the crash was released Monday by Belleville police.
Krummrich has been a sergeant since 2008 and is currently paid $86,136 to be a patrol supervisor. He is also an instructor at the Southwestern Illinois Police Academy.
Academy Deputy Director William Sax said he was unaware of Krummrich’s arrest and whether the academy would take any action against him.
Copyright 2012 Belleville News-Democrat. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Contact reporter Kevin Bersett at [email protected] or 239-2535.
Cops versus cops: Fairview officer’s DUI hearing leaves judge undecided
BY KEVIN BERSETT – News-Democrat -Tuesday, May 1, 2012 at 9:15 PM
Questions were raised Tuesday in St. Clair County Circuit Court over the Belleville Police Department’s handling of the St. Patrick’s Day DUI arrest of Fairview Heights Police Sgt. James Krummrich.
Associate Judge Brian Babka thought the factors surrounding the case were so unusual that he quoted a lyric from the ’60s rock band Buffalo Springfield during a hearing held to decide the fate of Krummrich’s driver’s license: “There’s something happening here, what it is ain’t exactly clear.”
Babka said he couldn’t conceive how the arresting officer Anthony Branchini could indicate Krummrich was “fit to drive” on a police report detailing Krummrich’s arrest for driving under the influence of alcohol. Babka also mentioned an allegation by the defense that a Belleville police lieutenant, not identified during the hearing and not at the scene of the crash, was the one who made the decision to arrest Krummrich, not the officers at the scene. – ISN’T IT INTERESTING THAT BABKA HAS A SYNAPTIC CONUNDRUM OVER CONFLICTING TESTIMONY, YET A FRAUDULENTLY FILED CASE WITH SWORN CRIMINAL COMPLAINTS COMPLETELY ESCAPE HIM IN MY CASE.
“There’s a lot of irregularities here,” Babka said.
At the conclusion of the hearing, which lasted more than an hour, Babka said he may need up to a week before deciding whether to rescind Krummrich’s driver’s license suspension. The suspension of Krummrich’s license for a minimum of 12 months was set to begin Wednesday.
Krummrich, 47, of Fairview Heights, has been on administrative leave with pay since his arrest. He is the subject of an internal affairs investigation, but the Fairview Heights Board of Police and Fire Commissioners has not scheduled a hearing yet on whether to take disciplinary action against him. – WHEN I TRIED TO FILE MY COMPLAINT AGAINST FAIRVIEW HEIGHTS POLICE JOSHUA ALEMOND AND AARON NYMAN, ACTING CHIEF GALLIUS HAD ME WRITE IT OUT ON A LEGAL PAD. HE DID NOT DIRECT ME TO THE FAIRVIEW HEIGHTS BOARD OF POLICE AND FIRE COMMISSIONERS. HE TOO, IS A FRAUD.
Defense attorney Gregory Skinner had called for Tuesday’s hearing. He is seeking to have the suspension rescinded on the grounds that the Belleville police report was defective and that Branchini did not have reasonable grounds to believe that Krummrich was driving under the influence. – I TOO DEMANDED A PROBABLE CAUSE HEARING TO CHALLENGE THE LEGALITY OF THE STOP WHERE I WAS ARRESTED AND BEATEN. THE FAIRVIEW HEIGHTS DID NOT APPEAR FOR THE HEARING, SAYING THEY WOULD NOT BE COOPERATING, AND MY CHARGES WERE DISMISSED.
Belleville police accused Krummrich of refusing to submit to sobriety tests after he was involved in a two-vehicle accident about 5:45 p.m. March 17 in the 900 block of North Illinois Street. No one was injured in the crash. A driver who fails to submit to sobriety tests automatically has their license suspended for a minimum of one year on the 46th day following their arrest.
At the hearing, Branchini testified that he arrested Krummrich because he smelled of alcohol, his eyes were glassy and he said he had a few drinks. Krummrich had already admitted to driving the truck involved in the accident, said Branchini, who has been a Belleville police officer since 2009. – THIS SEEMS LIKE MORE EVIDENCE THAN SOMEONE “WEAVING WITHIN THEIR OWN LANE”, YET KRUMMRICH IS ARGUING THERE WAS NOT PROBABLE CAUSE FOR HIS ARREST? PRICELESS, FOR A COP TO MAKE SUCH ASSERTINS, ESPECIALLY WHEN HIS GUYS ARE OUT DOING THE SAME TO OTHER PEOPLE.
Collinsville Police Sgt. Charles Mackin, who was a passenger in Krummrich’s 1995 GMC Sierra pickup, testified for the defense. Mackin said he was with Krummrich or Branchini during the entire time prior to Krummrich’s arrest and never heard him refuse to take a sobriety test. – I WOULD NOT PUT TOO MUCH STOCK IN TESTIMONY FROM ANOTHER COP, ESPECIALLY A COLLINSVILLE COP.
Mackin also testified that based on his 22 years of police experience he would not have arrested Krummrich for DUI. Was Krummrich under the influence of alcohol at the time, Skinner asked. – WHAT MEANT TO SAY, IS THAT HE WOULD NOT HAVE ARRESTED A “FELLOW OFFICER” WHO WAS DRUNK. THAT’S HOW THE SYSTEM WORKS.
“No, not at all,” Mackin testified.
Belleville police officer Dusty Kallal, who assisted Branchini, said he asked Krummrich to take a field sobriety test but he declined. Kallal admitted that he failed to mention this in his report.
But Assistant State’s Attorney Julie Elliot argued that Krummrich’s refusal to take a sobriety test was mentioned in Branchini’s report.
Branchini testified that Krummrich refused to take a field sobriety test at the scene and after his arrest he refused to take a breath test at the police station. Branchini said he had a video from his patrol car camera of Krummrich’s original refusal.
There one problem: Prosecutors never turned over this video to the defense during discovery. – IN MY CASE, I RAISED THE ISSUE OF DASHBOARD VIDEO EXCULPATING ME AND WAS NEVER PRODUCED UNTIL THE DAY BEFORE MY PROBABLE CAUSE HEARING WHERE THE PROSECUTION ACTED SURPRISED, EVEN THOUGH I HAD BEEN REFERRING TO IT FOR WEEKS. AFTER I RECEIVED THAT VIDEO FROM FAIRVIEW HEIGHTS, THEY REFUSED TO PURSUE CHARGES BECAUSE THE VIDEO CONTRADICTS THEIR REPORTS AND SHOWS THEM TO BE LIARS.
In response, Babka took off his glasses, put his hands on his head and asked Skinner whether he wanted to request sanctions against the prosecution for its failure to turn over the video as required. Elliot countered that Belleville police never gave her office that video, although they did submit videos from Kallal’s car and the booking area.
“I’m just as blind-sided as you are,” Elliot said to Babka.
Branchini and Kallal would not comment following the hearing. Belleville police spokesman Capt. Don Sax said he was unaware that the prosecutors did not receive all the videos.
“I wouldn’t know why not, without looking into it,” Sax said. “I had no idea they didn’t have everything.”
Belleville police have denied a public records request from the News-Democrat to view all the reports and the videos related to Krummrich’s arrest because the case is ongoing.
In closing arguments, Elliot argued that whether the state could prove Krummrich was under the influence of alcohol should be left to trial. All that the judge should consider when deciding whether to rescind Krummrich’s suspension was whether the officers had reasonable grounds to believe he was under the influence of alcohol.
Skinner countered that it appears the police investigation was not done in a “very competent” manner and that no field test was ever offered for Krummrich to deny.
Babka said the “gold standard” on whether the sobriety test was refused would have been the video from Branchini’s car, but the court didn’t have it. The judge hinted that he would have also liked to have heard Branchini explain why he put down Krummrich as fit to drive on his DUI report. The prosecution, however, never asked the officer that question.
“They’re some unusual features here,” Babka said. – THERE WERE UNSUAL FEATURES IN MY CASE TOO, MR. BABKA. WHY DIDN’T YOU QUESTION THOSE?
Copyright 2012 Belleville News-Democrat. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Contact reporter Kevin Bersett at [email protected] or 239-2535. Follow him on Twitter at twitter.com/KevinBersett
Judge reinstates driver’s license for Fairview police sergeant charged with DUI
BY KEVIN BERSETT – News-Democrat -Friday, May 4, 2012 at 10:12 PM
A St. Clair County judge rescinded on Friday the driver’s license suspension of Fairview Heights Police Sgt. James Krummrich who temporarily lost his license following a St. Patrick’s Day DUI arrest.
Associate Judge Brian Babka sided with the testimony of a Collinsville police sergeant, who was a passenger in Krummrich’s pickup, and questioned the strength of the evidence offered by Belleville police, whose handling of the investigation was scrutinized Tuesday during a hearing over the license suspension.
“I find that the testimony of defendant’s witness, officer Charles Mackin, of the Collinsville Illinois Police Department, was entirely credible, and very probative,” Babka wrote in his order. “An officer with 22 years of experience, his testimony was unimpeached. He stated his opinion was that defendant was not under the influence at all, and that there was not enough evidence to charge the defendant.” – NEVER MIND A WRECKED VEHICLE, AN ADMISSION TO HAVING BEEN DRINKING, AND A NUMBER OF OTHER OFFICERS CITING KRUMMRICH’S APPEARANCE. HE HAD A NOTE FROM HIS MOMMY, SO I’LL LET HIM GO.
Fairview Heights police sergeant James Krummrich, arrested for DUI on St. Patrick’s Day in Belleville. – Provided/BND
Krummrich, 47, was charged with DUI and improper merging into traffic in connection with a March 17 two-vehicle accident in the 900 block of North Illinois Street that did not result in any injuries. He lost his license under Illinois’ statutory summary suspension law, which strips DUI defendants of their driver’s license for a minimum of 12 months when they refuse to undergo chemical testing.
Defense attorney Gregory Skinner requested Tuesday’s hearing. He was seeking to have the suspension rescinded on the grounds that the Belleville police report was defective and that police did not have reasonable grounds to believe that Krummrich was driving under the influence of alcohol.
Skinner would not comment Friday because he had not yet read the order.
Belleville police testified that they had reasonable grounds to believe Krummrich was under the influence of alcohol because he admitted to having a few drinks, had glassy eyes, smelled of alcohol and refused a field sobriety test.
“We respectfully disagree with the judge’s decision, and we are reviewing it,” State’s Attorney Brendan Kelly said. – WELL, MY CONFIDENCE LEVEL JUST WENT THROUGH THE ROOF. BRENDAN KELLY, THE SAME GUY WHO AS CIRCUIT CLERK MISHANDLED MY COMPLAINTS AND PLACED THEM IN FRONT OF BABKA? GOOD LUCK.
In his order, Babka cited case law that stated officers must show probable cause that someone was driving under the influence, and not act on “mere suspicion” when making an arrest.
A driver involved in an accident and who smells of alcohol must show additional signs of intoxication before they can be arrested for DUI, the case law cited by Babka stated. These signs could include bloodshot eyes, slurred speech or erratic driving, none of which Krummrich displayed, the judge stated. In fact, arresting officer Anthony Branchini described Krummrich as cooperative, orderly and “fit to drive” in his report on the DUI.
Babka reiterated the unusual factors surrounding the case, which he had made note of during the hearing.
“There is a veritable ‘tsunami’ of unusual or irregular events that surround this cause, including the disclosure during the hearing of a video/audio recording of some of the events that was not previously produced to defendant despite a prior discovery request, no record of a field sobriety test being offered by an officer during an investigation of an alleged DUI in his report, a bizarre report by an alleged eyewitness to the accident involved which was found to be completely erroneous, (including the driver and passenger changing seats), mistakes in the investigative officer’s reports such as a (preliminary breath test) being offered, when admittedly, there was no such offer, and other events,” the order states.
Belleville police failed to provide prosecutors with a video from Branchini’s patrol car, which he testified would have shown Krummrich refusing to take a field sobriety test. Assisting officer Dusty Kallal testified Krummrich refused a field sobriety test and later a breath test after his arrest, but did not mention these in his reports. Krummrich’s denials to take the tests were mentioned in Branchini’s report, according to Kallal and Assistant State’s Attorney Julie Elliot.
Mackin testified he never witnessed Krummrich being offered a field sobriety test. He also alleged that a Belleville police lieutenant not on the scene made the decision to arrest Krummrich, not Branchini or Kallal, who testified to having a combined 11 years police experience.
Belleville Police spokesman Capt. Don Sax refused to comment for this story because the case is ongoing. Belleville police have refused to release police reports, 911 tapes and videos related to the case for the same reason.
Krummrich has been on administrative leave with pay since his arrest. No trial date has been set in his DUI case.
Copyright 2012 Belleville News-Democrat. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.
Contact reporter Kevin Bersett at [email protected] or 239-2535. Follow him on Twitter at twitter.com/KevinBersett
Saturday, May. 05, 2012
Baffled by DUI ruling
The Belleville police’s handling of Fairview Heights Police Sgt. James Krummrich’s DUI is, in a word, a mess. It seems like the work of the Keystone cops.
Krummrich was ticketed for DUI on St. Patrick’s Day following a two-car accident.
Why did Belleville officer Anthony Branchini mark on the report that Krummrich was fit to drive after a DUI ticket? Why, if he had a dashboard video of Krummrich refusing to take a field sobriety test, wasn’t that turned over to prosecutors? And what’s this about a lieutenant not at the scene making decisions?
These and other discrepancies will make it difficult, maybe impossible, for the St. Clair County state’s attorney to successfully prosecute Krummrich for DUI. If Belleville Police Chief Bill Clay isn’t already investigating his officers’ handling of this case, he needs to get started.
That said, we are baffled by St. Clair County Associate Judge Brian Babka’s decision to let Krummrich keep his driver’s license. In Illinois accused DUI drivers who refuse chemical tests automatically lose their driving privileges for a year. But Babka ruled that there wasn’t sufficient reason for the police to ask him to take such a test in the first place.
Really? Krummrich was involved in an accident, he admitted he had been drinking and an on-duty police officer said Krummrich smelled of alcohol and his eyes were glassy. That seems like plenty of reason for the police to want to check to see whether he was over the legal limit.
Babka notes that Krummrich wasn’t swaying or slurring his speech, and that his policeman pal who was riding with him testified that Krummrich wasn’t driving impaired. A motorist doesn’t have to be falling down drunk to be impaired. The legal limit in Illinois is a relatively low .08.
As far as the pal’s testimony, he may be too close to the situation to be objective. What else would he say? That he let his friend drive even though he’d had one too many?
We expected Babka to back up the automatic suspension law. How disappointing that instead he found a loophole for Krummrich.
My Letter to the Editor of the Belleville News Democrat which ran on 5/15/12
Police held to a different standard
So, Fairview Heights Police Sgt. James Krummrich admitted to drinking before an accident, and another officer perceived his appearance to be consistent with intoxication. Thanks to a technicality (cop talk), Krummrich found refuge under the robe of St. Clair County Judge Brian Babka.
Did Babka apply the law? I find that hard to believe; especially when I’ve seen Babka directly ignore the law, require me to write a brief, and then refuse to hold a hearing on his ruling denying my motion.
Let’s say that Krummrich was driving his car home at 2 a.m. and an officer observed him “weaving within his own lane,” not speeding or even crossing the lines. According to actual police reports and an absurd assertion by the assistant state’s attorney, the police would have the necessary authority to suspect the driver of being intoxicated, initiate a stop, forgo any questioning or investigation, and then proceed to Tase, beat, and arrest the sober “perp.”
Eventually, the accused would have a case filed on his behalf by the Circuit Clerk, which would then end up in front of Babka, who would acknowledge the apparent “irregularity” with the case file, but proceed nevertheless. Babka may then, after being confronted with “settled law” (Including the Illinois Constitution), scratch his head over the definition of “magistrate,” and further refuse to do his judicial duty in hearing a sworn complaint.
Why didn’t Babka play dumb, like he did in Case 10-MR-212? Why do cops “lawyer up” when it suits them? A malfeasant by any other name. …
UPDATE – 7/26/12
State’s Attorney, Brendan Kelly, goes on the record with his decision to not prosecute Fairview Heights police sergeant, James Krummrich, for his alleged drunk-driving-related crash on St. Patrick’s Day, 2012. Kelly goes on the record with stating he investigates and prosecutes police against whom criminal allegations are made, which is an absolute lie, considering how he took complaints from me regarding Fairview Heights Police, Officer Alemond and Officer Nyman, and improperly filed them as a civil case before Judge Brian Babka, who then dismissed the case.
I have made a number of people aware of this, including the Belleville News Democrat, who refuse to print one word involving the ordeal.
This is the story at the Belleville News Democrat
Here is Brendan Kelly’s statement in regard to the Krummrich case, in response to a News-Democrat reporter’s questions:
Sgt Krummrich”™s cases are no longer pending. In the interest of the public trust, the problems in this case should be discussed. No one is above the law especially those who have sworn to uphold the law. That’s why my Office has charged nine law enforcement officials with criminal charges in the last nine months. My Office continues to review allegations of unlawful conduct by police officers and will prosecute police officers who have violated the law when the facts and evidence allow us to do so. At the scene, the decision to arrest someone is a police decision, not one made by prosecutors. The patrol officers allegedly had evidence that Sgt. Krummrich had caused an accident after pulling out of the parking lot of a tavern. They also allegedly had evidence that his eyes appeared glossy and that he stated “œ a few” when asked if he consumed any alcoholic beverages that day. I will not criticize the decision to arrest him.
The evidence was insufficient to convict beyond a reasonable doubt for several reasons:
” there was no evidence that Sgt. Krummrich was staggering, unsteady, stumbling or unable to stand in either the on scene video or booking video at the station.
” there was no evidence that Sgt. Krummrich had blood shot eyes or slurred speech.
” there was evidence Sgt. Krummrich admitted to having “œa few” drinks, but no evidence of him admitting to being intoxicated.
” there was no evidence from field sobriety tests because none were performed by Sgt. Krummrich.
” there was no evidence of blood alcohol content because Sgt. Krummrich did not perform a breathalizer test.
” there was no evidence of alcoholic beverage containers in Sgt. Krummrich”™s vehicle. Mistakes were made by the arresting officer that undercut his testimony including
(1) after he arrested Sgt. Krummrich for DUI, he marked in a report that Sgt. Krummrich was “œfit to drive,” and
(2) he testified that on scene, Sgt. Krummrich refused to do sobriety tests, but no such refusal was captured on the audio recordings of the stop.
There is zero evidence to believe the patrol officers purposely made mistakes or did anything unlawful. Mistakes were clearly made, but it is also clear these mistakes were neither malicious nor purposeful. Consequently, I have no credibility concerns about these Belleville officers. Officer Branchini logged a copy of his squad car recording into evidence. A prosecutor requested a copy of this recording listed in the evidence receipt. A separate officer tendered to that prosecutor a copy of the booking area video and a recording that turned out to be from Officer Kallal”™s squad car. Copies of these recordings were tendered to the defense. Nothing indicated this recording was anything but what was documented on the evidence receipt. This mistake came to light at the hearing and was rectified by getting a copy of Officer Branchini”™s recording that was then provided to the defense. However, neither of the recordings from the squad cars captured anything incriminating against Sgt. Krummrich. After the hearing, my Office ordered an 88 page transcript of the hearing to precisely review the testimony of all the witnesses. At the end of this review and in light of the court”™s very detailed, factual findings, it was clear that the right thing to do- the only thing to do- was to dismiss the DUI case. We can”™t make up evidence. I can”™t prosecute someone based on my personal feelings about a situation. I”™ve got to have evidence. The remaining traffic charge(improper merging into traffic) was disposed of only after the attorney of the victim involved in the accident made clear his client no longer wished to proceed in any case. The finding of guilty on this charge had nothing to do with the dismissal of the DUI case. With summary suspension hearings, judges can rule against the prosecution in two ways”¦first, a judge can find there was a procedural / technical violation such as the officer failed to read verbatim the warnings to motorist. Second, a judge can find there were no reasonable grounds or probable cause that the driver was intoxicated. If the Judge had ruled in favor of the defendant on a procedural technicality, and the evidence had been stronger, we may have moved forward with the criminal case. He did not do so. Instead, the judge made a legal conclusion based upon findings of fact from evidence presented at the hearing. The judge found that “œthere is no credible evidence that defendant was intoxicated.” It is not unusual to dismiss a case after the court makes such a finding. This is because once a judge has decided there is no probable cause the driver was intoxicated, it will be a practical and legal impossibility to prove intoxication at trial beyond a reasonable doubt. At our request, Belleville officers conducted some final additional investigations seeking proof Sgt. Krummrich purchased alcohol around the time of the crash. No evidence could be found. In addition, a witness to the accident initially claimed that the driver and front seat passenger of Sgt. Krummrich”™s vehicle had switched after the accident, and then returned to the scene after he confronted them. My Office requested the Belleville Police to investigate this very serious claim. When questioned by Belleville detectives, this witness said he was not 100% sure they switched. Also, the detectives checked unsuccessfully for any video recording devices that may have captured the accident or where Sgt. Krummrich”™s vehicle was driven after the accident. On scene, Sgt. Krummrich stated he was the driver at the time of the accident. The driver of the other vehicle involved in the accident repeatedly stated on scene that Charles Mackin was not the driver of Sgt. Krummrich”™s vehicle. After the investigation, there was insufficient evidence to support this claim that the occupants of Sgt. Krummrich”™s truck had switched seats. The credibility of these officers will be reviewed on a case by case basis as is the credibility of every witness in a case.
No one is above the law, but neither is anyone below the law. Proof beyond a reasonable doubt applies to a charged police officer as well as any civilian. The evidence is what the evidence is no matter who you are or who you know. This is true for the other officers and public officials being prosecuted by my Office right now. John Adams said, “œfacts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” The facts in this case are especially stubborn. Political perception and cynicism about the system made this a frustrating case to have to dismiss. But a prosecutor’s decisions have to be made on the law and the evidence. In the end that may be a prosecutor”™s most important duty regardless of the potential criticism. Mr. Romanik is free to discuss his cases, but prosecutors do not have that luxury. We cannot and will not comment on his cases because they are still pending. We will not compromise his right to a fair trial.
Motion to Reconsider Courts Dismissal of Case 10-MR-212 Absent a Review of all Authorities Cited in Petitioner’s Memorandum of Law
This is a motion in response to Judge Brian Babka’s dismissal of Case 10-MR-212 following my Memorandum of Law, and in support of my Motion to Reconsider his dismissal. I write of the dismissal here http://marcmkkoy.com/2011/06/26/judge-brian-babka-dodges-the-issue-of-issuing-arrest-warrants-against-police-case-10-mr-212-is-dismissed/
IN THE CIRCUIT COURT
TWENTIETH JUDICIAL CIRCUIT
ST. CLAIR COUNTY, ILLINOIS
Mark R. McCoy,
Case No. 10-MR-212
MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW
‚ ‚ ‚ ‚ NOW comes the Petitioner, Mark R. McCoy, and through his MOTION TO RECONSIDER COURTS DISMISSAL OF CASE 10-MR-212 ABSENT A REVIEW OF ALL AUTHORITIES CITED IN PLAINTIFF’S MEMORANDUM OF LAW, states as follows:
1. That the above-captioned case was filed, to the best of the Plaintiff’s knowledge, on June 17, 2010, following Plaintiff personally tendering to Brendan Kelly, then Clerk of the Circuit Court, Twentieth Judicial Circuit, St. Clair County, Illinois, a number of documents captioned ‚“Complaint and Affidavit in Support Thereof‚ which Plaintiff represented to be sworn complaints alleging violations of law by persons named therein, and which are sworn to by the Plaintiff and verified by the affixment of a signature and notarial seal from a Notary Public of the State of Illinois .
2. That then Clerk of the Circuit Court, Brendan Kelly, did presumably act within the Constitutional authority of his office in bringing said complaints before the court by way of his filing of the above-captioned case.
3. That the issue before this Court, originating with an officer of the Court filing said complaints, implies a remedy which exists with the Judiciary.
4. That if a remedy had existed with the administrative, as with the State’s Attorney, then it would be reasonable to assume that Mr. Kelly would not have taken the action of filing Plaintiff’s complaints in such fashion and would have instead either refused to accept Plaintiff’s complaints or directed Plaintiff to the State’s Attorney, which he did not.
5. That this Court is in possession of sworn complaints which originate with the Plaintiff, were received by an officer of the Court, presumed to be properly filed, and which conform to statutory requirements for presentment to a Court.
6. That this Court has essentially been presented with complaints which charge that an offense has been committed, thereby imposing a mandatory duty upon the Court by way of the plain language of the Illinois Code of Criminal Procedure 725 ILCS 5/107-9(a)to examine the complainant upon oath or affirmation.
7. That on August 16, 2010, to the best of the Plaintiff’s knowledge, additional complaints were added to the file subsequent to Plaintiff’s mailing of said complaints to Brendan Kelly, Chief Judge, John Baricevic, and then State’s Attorney, Robert Haida.
8. That the person responsible for supplementing the file with the additional complaints was then Clerk of the Circuit Court, Brendan Kelly.
9. That it is the Plaintiff’s belief that the person responsible for the filing of the above-captioned case is none other than then Clerk of the Circuit Court, Brendan Kelly.
10. That the above-captioned case was assigned to the Honorable Brian Babka pursuant to an Order entered by Chief Circuit Judge, John Baricevic on December 7, 2010.
11.That the above-captioned case contains no other pleading, motion, or prayer for relief, which would indicate a remedy sought by the Plaintiff.
12. That the Plaintiff did appear before the Honorable Brian Babka on February 24, 2011 for a hearing regarding this case.
13. That the Plaintiff did engage this Court with a verbal recitation of what he believed to be the circumstances giving rise to the Court being in possession of said complaints.
14. That this Court did identify and recognize the Plaintiff’s documents as being complaints alleging criminal offenses, and did thereby ask by what authority the Plaintiff believed he had a right to bring said complaints before a Court and not a State’s Attorney or police agency.
15. That the Plaintiff did provide one authority he felt best supported his position, that being Lindquist v. Friedman’s, Inc., 366 Ill. 232, 8 N.E. 2d 625 (1937).
16. That this Court said it would review the cited case and discuss its findings in a subsequent hearing.
17. That the Plaintiff did appear before the Honorable Brian Babka on May 12, 2011 for the purpose of discussing his review of Lindquist and its application to Plaintiff’s case for bringing complaints before the Court.
18. That Judge Babka did state that he did thoroughly research the Lindquist case and found it to still be current, and not overturned in any subsequent Appellate Court opinion, notwithstanding that opinion being rendered in 1937.
19.That Lindquist does speak to, and confirm the right, of a private individual to bring charges alleging violations of law before a ‚“magistrate‚ for the purpose of a court examining the complainant and if, upon a finding of probable cause, issuing warrants of arrest for the accused to be brought before the Court to answer the charges and post bail, if need-be.
20.That the only exception between Lindquist and this case before the Court, as voiced by the Judge Babka, was that of there being no judicial officers presently serving in Illinois under the title of ‚“magistrate‚.
21.That Judge Babka did say that due to the lack of an identifiable judicial officer serving under the title of ‚“magistrate‚, an otherwise valid remedy is no longer available.
22. That Judge Babka did say that should the Plaintiff care to research the issue of ‚“magistrates‚ and find where an answer affords a remedy, he may present that information to the Court for further review.
23.‚ That Judge Babka did leave the above-captioned case open and scheduled for another status hearing in one year.
24. That upon further inquiry into the issue of judicial officers previously known as ‚“magistrates‚, no longer serving under that title in the State of Illinois, and if so empowered to hear complaints and issue warrants, to whom did that power now devolve, and what became of that judicial office, Plaintiff did file his MEMORANDUM OF LAW on June 13, 2011 which speaks to those very issues.
25. That in said Memorandum, the Plaintiff not only cites Lindquist, but other authorities as well, which not only support his position regarding bringing charges directly before a Court, but which also settles the question as to the fate of heretofore magistrates, who were empowered with hearing complaints, examining complainants, and issuing warrants of arrest, as having undergone a title change to that of Associate Judge, still possessing the same powers and duties as magistrates per the Illinois Constitution of 1970.
26. That among said authorities cited in Plaintiff’s Memorandum are citations from the Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., which impose a mandatory duty upon a Court to act when presented with a complaint that conform to statutory requirements.
27. That among said authorities cited in Plaintiff’s Memorandum is the Illinois Constitution of 1970 Transition Schedule and excerpts from the Sixth Illinois Constitutional Convention, which identify Associate Judges as having previously been titled magistrates, and who have the authority to issue arrest warrants, and conduct preliminary examinations of persons arrested.
28. That on June 20, 2011, the Honorable Brian Babka did issue an Order in response to Plantiff’s Memorandum.
29. That in said Order, Judge Babka cites the case of People ex rel.Daley v. Moran 94 Ill. 2d 41, 445 N.E. 2d 270, 67 Ill. Dec 790 in response to Plaintiff’s Memorandum, specifically one case therein cited as Lindquest v. Friedman’s Inc., 366 Ill. 232, 8 N.E. 2d 625 (1937).
30. That Plaintiff did provide other supporting authorities for his position, as well as raising other arguments in his Memorandum, that were not addressed in the Order.
31. That the Order mischaracterizes the remedy sought by the Plaintiff and is thereby unresponsive in that:
a. Plaintiff does not seek the issuance of arrest warrants, exclusively.
b. That Plaintiff is not seeking to exercise, or to have this Court exercise, any power belonging to the State’s Attorney, other Administrative Officer, or otherwise violate the doctrine of separation of powers.
c. That Illinois Law, Illinois Code of Criminal Procedure 725 ILCS 5/107 et seq., is clear on the procedure for presentment of a complaint to a court, and a duty of a Court to act when so presented, as cited in Plaintiff’s Memorandum, but such issue is not addressed in the Court’s Order dismissing this case.
d. That the case of People ex rel Daley v. Moran, cited in the Order, does not speak to the issuance of arrest warrants, but merely speaks to the separation of powers between the judiciary and administrative when charging an offense, making no mention of receiving complaints or examining complainants, and is not therefore on-point for the purposes of Plaintiff’s remedy.
e. That Plaintiff agrees with the holding in People ex rel Daley v. Moran, as the discretion for prosecution rests with the State’s Attorney, however the power to hear complaints, examine complainants, issue warrants of arrest, and conduct preliminary examinations, rests solely with the judiciary, of which Associate Judges are a part.
f. That Plaintiff answered the Court’s question as to magistrates and any corresponding judicial officer presently sitting and empowered to act upon complaints, by way of his Memorandum, where he cites the Illinois Constitution of 1970 Transition Schedule and excerpts from the Sixth Illinois Constitutional Convention.
g. That the contents of the file for this case do not clearly speak to the remedy sought by the Plaintiff, and the record is thin on written evidence, relying solely upon brief oral arguments which may not have clearly presented.
h. That the remedy sought by the Plaintiff is to present his sworn complaints and supporting evidence to a judicial officer empowered to hear such complaints, and to avail himself to being examined under oath, as required by law, and for such judicial officer to act upon the results of such presentment and examination according to law.
32. That this court has not reviewed, nor addressed, other supporting authorities presented, notwithstanding Lindquist, that affirm the right of a private individual to bring complaints before a Court.
33. That judicial officers once serving under the title of ‚“magistrates‚, now serve in the same capacity as Associate Judges, following a renaming of magistrates in the Illinois Constitution of 1970, but retaining the powers and duties previously assigned.
34. Therefore, considering all facts and circumstances to-date, it is reasonable to assume that a remedy exists with this Court for addressing or otherwise acting upon the Complaints contained therein
WHEREFORE, In light of the foregoing, and in the interest of justice and submission to the laws of the State of Illinois, Plaintiff hereby requests this Court to reconsider its Order of June 20, 2011 which dismissed the above-captioned case, and review all of the information before it.
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Mark R. McCoy, Petitioner
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