Brian Towne is conducting a perjury inquiry that is part of the fallout from a wrongful conviction in the kidnapping and murder nearly 60 years ago of Maria Ridulph. He is due in court in Sycamore on Monday to give an update on the status of his probe into whether police and prosecutors lied five years ago in the coldest murder case ever tried.
But court records in another Illinois county reveal a potential snag. A judge has been asked to appoint a special prosecutor to look into Towne, raising a thorny question for this infamous cold case: Can any prosecutor conduct a thorough, independent inquiry if he is accused of doing the very same thing he's investigating?
Towne is accused of making statements in court that are contradicted by public records. Whether or not that amounts to perjury is a judgment call usually left to a special prosecutor to decide.
A leading expert in legal ethics says Towne has little choice but to step down.
"He should recuse himself," said Laurie Levenson, a former federal prosecutor who teaches ethics and advocacy at Loyola Law School in Los Angeles. "It sounds like he's the wrong guy to be handling this right now."
Russell Ainsworth, attorney for the man wrongfully convicted, Jack McCullough, agreed that Towne's situation makes him the wrong choice:
"We need an experienced prosecutor to investigate perjury. We do not need a prosecutor accused of perjury," Ainsworth said. "That's not the kind of experience required for a thorough job."
Any investigation into a special prosecutor's own actions would likely make it too difficult for him to maintain objectivity, legal experts agreed.
Towne has, in effect, been placed in a lose-lose situation, said another attorney knowledgeable about the McCullough case who spoke on background. If too aggressive, he could be viewed as overcompensating. But if he finds no evidence of wrongdoing, he could be seen as soft on cops, especially the Illinois State Police.
"It's an alarming allegation and we're looking into it," Rick Amato, state's attorney in DeKalb County, said of the conflict. His office requested the special prosecutor in the Ridulph case because past or current employees could face scrutiny in that investigation.
Towne denies the allegations of wrongdoing, and said he expects to be fully cleared at a hearing later this month. For now, he said, he will step aside and let another lawyer from his office take the lead.
That attorney, Charles Colburn, is expected to file his appearance in the McCullough case on Thursday, Towne said.
The tape that didn't exist
Towne's initial task as special prosecutor in the Ridulph case was to look into a perjury allegation
, but, as court papers note, the job could expand to include other allegations of misconduct.
At the heart of the Sycamore probe is a simple fact: Police and prosecutors denied in open court that an interrogation was taped. And yet, a tape did exist. What's more, when it surfaced in response to a public records request, the tape contradicted the official police version of what was said.
Now similar allegations have been raised against Towne. On at least two occasions, court records indicate, Towne's testimony was contrary to the facts documented by public records.
On both occasions, the testimony dealt with details of his pet project, a controversial drug interdiction program he created in LaSalle County when he was state's attorney. He dubbed it SAFE -- for the State's Attorney's Felony Enforcement unit.
SAFE's investigators, mostly retired Illinois State Police troopers, worked separately from other police agencies, and answered only to Towne. They made traffic stops, wrote tickets, and when the signs were right brought in dogs to sniff the perimeters of vehicles. If the dog alerted, the car was searched and any drugs, cash or other items were seized.
Lawyers for some of the 77 people who had cash and property seized during car stops on Interstate 80 say SAFE stood for something else: "A cash grab." Records show the Illinois State Police forwarded $528,567 to SAFE from early 2012 through mid 2015.
"He completely eliminated one of the checks and balances of government on police behavior," said Chicago attorney Stephen Komie, who represents one of the drivers stopped by SAFE. "He made himself chief of police of his own highway patrol."
Komie's client, Cara Ringland, is fighting Towne and his drug stop cops all the way to the Illinois Supreme Court. In her case, Komie said, a mud flap a couple of inches too short provided the pretext to stop the rented U-Haul she was driving. SAFE alleges she had 167 pounds of cannabis in back.
The SAFE program was suspended in June 2015, after an appeals court found that Towne had overstepped his authority by creating his own police force. Towne appealed to the Illinois Supreme Court, blandly observing, "Even the courts can make mistakes."
He said he expects the Supreme Court to rule in his favor.
If Towne prevails, it will greatly expand the power of prosecutors in Illinois.
Towne, who grew up in LaSalle County, has said in interviews that he always wanted to be a prosecutor. As a young assistant in the state's attorney's office in the 1990s, he befriended an Illinois State Police trooper who brought him drug cases from car stops on Interstate 80.
Trooper Dan Gillespie seized more contraband than anyone else on the Illinois State Police, and that made him something of a law enforcement legend. A bond was forged with the bushy-tailed young prosecutor, and both men were disappointed when Operation Valkyrie, the model for SAFE, shut down amid allegations of profiling.
"Dan didn't get to do what he loved to do anymore, and I didn't have the volume of cases that I used to have in that area," Towne told the monthly legal publication, Chicago Lawyer, tracing the origins of his controversial program during an interview in December 2015.
"We had both often discussed the idea that when the time was right -- when he retired from the state police and if I was ever the state's attorney here -- that we would, I guess, reunite."
Towne was appointed to the top job in 2006; once he was in, so were the drug stops along Interstate 80. He liked to brag that he was taking drugs off the streets of Illinois, but most of the cannabis was just passing through on its way somewhere else.
SAFE hit the streets in November 2011 and was controversial from the beginning. But mostly it was lucrative, bringing in some $250,000 in its first year.
State law dictates how the money should be split, with the arresting agency getting the lion's share, 65%.
Language in the law also governs investigators for state's attorney's offices -- authorizing them to serve summons and subpoenas and help with grand jury witnesses. There is continuing litigation over whether they are authorized to stop cars on the Interstate and arrest people. Nevertheless, that's what they did.
Defense attorneys responded by filing motions to suppress evidence they argued was the fruit of illegal searches. Towne started getting pushback in court from lawyers who were asserting that he was using SAFE as his personal police force -- and a piggy bank for his office.
He took the witness stand several times to defend his pet project.
'A most unusual situation'
Towne's testimony at two hearings in late 2012 and early 2013 is now being called into question. At both, Towne said that SAFE received a 12.5% cut of all assets seized. He insisted that the lead agency, the Spring Valley Police Department, received the lion's share at 65%.
But that's not the story the records from those cases tell. Vouchers from the Illinois State Police, which holds the money in trust, indicate that SAFE not only collected the legally allotted 12.5%, but it also laid claim to the arresting agency's 65%. The total take? An eye-popping 77.5%.
It can add up quickly.
In one case, early in the program, the Illinois State Police sent a check for $41,535, made out to the SAFE program in Towne's name. But another case involving Komie's client, Ringland, was appealed, and so no check was forthcoming. The appeal led to the ruling that SAFE was an illegal police force, and that is the decision Towne is appealing in the state's highest court.
Under the law, the State's Attorney or another prosecutor receives 12.5%, the Illinois State Police receive 10% for holding the money in trust, and the police agencies take the rest.
Towne spelled it out for attorney Komie in court: "The arrangement that we have with the Spring Valley Police Department and subsequently the LaSalle Police Department is that they are considered the law enforcement agencies for receipt of those funds. I only receive 12.5%."
Towne may have designated Spring Valley as his arresting agency, but there's a problem: Spring Valley isn't in LaSalle County; it's next door, in Bureau County.
As records for those early cases show, SAFE was issued the bulk of the money in almost every instance, not the Spring Valley Police.
To prove perjury, a prosecutor must show that false statements were made with the specific intent to mislead. And that is notoriously difficult to pull off in the courtroom.
It's a point that won't remain lost for long on Towne. He himself has filed perjury charges in two pending cases. One involves Julie Ajster, an attorney who has run a very public campaign against SAFE and, depending on how the state Supreme Court rules, is considering a class-action lawsuit on behalf of the 77 people stopped.
She says the perjury case against her is "completely ridiculous" and that it will be shown to be politically motivated.
All of these side developments complicate the McCullough case, which already has seen more than its share of twists and turns over a generation. Not only are the original investigators now under investigation, but the inquiry is being conducted by Towne, a special prosecutor who soon may be scrutinized by another special prosecutor.
"I've never seen this happen before," said Levenson, the Loyola law professor. Juliet Sorensen, a legal ethics professor at Northwestern University's law school, called it "a most unusual situation."
Special prosecutor for a special prosecutor?
A special prosecutor was first sought for the McCullough case in August, after an interrogation tape was found; police and prosecutors had insisted that it didn't exist. The taped interview, a warm-up for a polygraph test, fails to support the police version of McCullough's words and demeanor.
Three weeks later, Ajster filed her petition for a special prosecutor to look into Towne, then the state's attorney in LaSalle County, and how he was handling the SAFE money.
A decision was delayed until after the November election, and Ajster amended her request in late January to reflect Towne's loss at the polls. (Towne joined the special prosecution unit of the Illinois Appellate Prosecutor's office soon after his defeat.)
Ajster's court papers state that while in the state's attorney's office Towne "may have committed numerous acts of official misconduct." Most of them had to do with how he collected and spent forfeited drug money.
Many of the people stopped by the SAFE unit lost money and property through uncontested civil asset forfeitures, but were never charged with a crime. Once assets are seized, it is up to the property owner to prove they were not ill-gotten criminal proceeds. Many clients chose to walk away rather than risk criminal charges, Ajster said.
Towne was roundly criticized for trying to play both prosecutor and police chief. In Illinois, state's attorneys review cases brought to them by police. Their investigators are authorized to serve summonses and subpoenas and assist with grand jury witnesses.
What Towne did with the money is prompting calls for the special prosecutor. Illinois' Cannabis Control Act states that all seized drug money must be funneled back into "drug law enforcement." This could include a drug court, or education and rehab programs.
But, critics say, drug law enforcement shouldn't include sponsoring sports teams. Putting a state's attorney's name on sports team jerseys does little to promote drug prevention, but does plenty to promote the state's attorney and his campaign.
Towne's response? If kids are kept busy with sports and other activities, they won't be drawn to drugs. And so, he gladly used SAFE funds to sponsor school trips to Orlando and Washington, as revealed in court records. He even went along as a chaperone.
Towne and his SAFE cops traveled to law enforcement conferences in Las Vegas and San Antonio, spending some $95,000 -- and $17,000 on per diem payments alone. He bought computers, SUVs, television monitors and workout equipment for the cops.
While the county board knew Towne had control over forfeited drug money, nobody was aware that he may have been spending some of it, as his critics alleged, to raise his visibility during an election year.
Following the money
Opinions vary on whether a possible investigation of Towne places him in a direct conflict of interest in the McCullough matter -- the very situation special prosecutors were created to avoid.
It may not be impossible to conduct an independent, objective investigation of alleged wrongdoing if the investigator himself also faces accusations of wrongdoing. But, as nearly everyone agrees, it does little to instill faith in the system.
"He's got too much baggage," said one lawyer, speaking on background.
Any appearance of conflict or favor can easily be avoided if Towne steps aside and makes way for another special prosecutor from the Appellate Prosecutor's office.
Already, the Ridulph case has been a black eye for Sycamore, the DeKalb County seat.
The kidnapping and murder of the 7-year-old -- and the failure to solve the crime over five decades -- is a source of sadness and frustration for Sycamore's old timers. Matters were only made worse by the embarrassment of learning that the police and prosecutors got the wrong man.
The prosecutor who built the McCullough case, Clay Campbell, has declined to comment.
The Ridulph family still believes McCullough is Maria's killer. They are convinced there's been a miscarriage of justice. Maria's brother, Charles, has grown so disheartened he has stopped attending court hearings.
Voters had the final word in November. State's Attorney Richard Schmack, the prosecutor who concluded that McCullough couldn't have committed the crime, was voted out of office.
Meanwhile, 50 miles south of Sycamore, Towne had his own troubles holding onto his job. A grassroots campaign led by Ajster was asking tough questions about how he was spending the drug money.
She and other critics said he was doling it out in a way that made him look good. He was, in effect, empire building. It wouldn't be much of a stretch, Ajster suggested, to say he was buying votes.
Towne's feud with Ajster began with a minor complaint involving her boyfriend and an unpaid bill for a yard cleanup. It escalated when Towne's office filed felony threat charges against the boyfriend, alleging he called and threatened to kill the complainant, his lawyer and a sheriff's deputy.
Ajster responded with a federal false arrest lawsuit. And then Towne sought a special prosecutor to press the perjury charges against her. Ajster told reporters after a court hearing that the criminal case had been filed to silence her.
The boyfriend has pleaded not guilty, and the case is pending -- as are the perjury charges against Ajster. They have to do with what she wrote in a bail application: she allegedly didn't didn't disclose the boyfriend's disability payments as income. Ajster saw it as a move to discredit a critic and doubled down, refusing to be intimidated or silenced.
"I will vigorously defend against these charges and with even more vigor I will continue to investigate and expose the misconduct of Brian Towne and SAFE," Ajster vowed.
By then she had become a self-styed whistleblower -- and the public face of the group called the "Lying Brian Towne Trust." The trust, independent of Towne's opponent in the race for state's attorney, Karen Donnelly, was dedicated to ousting Towne and circulated flyers urging residents to vote against him.
The controversy ultimately cost Towne the election, but he didn't stay on the sidelines for long. He'd headed the board of governors of the Appellate Prosecutor for years and quickly landed a job there.
The office and its team of special prosecutors had even picked up some of Towne's drug cases -- taking its own 12.5% cut of the money seized.
Ajster, meanwhile, decided she wasn't the only one who needed a special prosecutor. She filed paperwork seeking a special prosecutor to look into Towne. The matter is set for a hearing on March 29.
Towne says the new state's attorney, Karen Donnelly, doesn't have a conflict of interest, and so he expects the request to be dismissed. "I hope my integrity is restored and we can proceed on" with the McCullough inquiry.
Donnelly won the election by some 4,000 votes. She says an audit of SAFE expenditures is underway. She expects to attend the March 29 hearing and add her voice in support of a special prosecutor.
She says she is not comfortable with pursuing a case against a man she has known for years and recently beat at the polls.
None of this was exactly a secret when Towne accepted the appointment in the McCullough case. But now, there are serious questions about whether he is the right man for the job.
Asked if she believes Towne would be capable of ferreting out suspected misconduct by police, Donnelly answered without hesitation: