State Of Illinois,

v.
Annabel K. Melongo
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
CRIMINAL DIVISION
Plaintiff, NO.10CR0809201
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Judge Steven J. Goebel
Defendant,
Motion To Reconsider October 25
th
, 2012, Ruling
NOW COMES Annabel K. Melongo, Pro Se, and asks this Honorable Court to reconsider its October 25
th
,
2012, ruling denying the defendant' s motion to dismiss the indictment based on perjury and discovery
violati ons. As grounds of this motion, the Defendant states:
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1. When first filed in Rolling Meadows, IL, 06300688, t he above charges were dismissed in that court
on January 10
th
, 2007, for lack of evidence.
2. On January lih, 2007, the state indicted the defendant at 2650 California Ave. on the same
charges, 07CR2341 ("07 grand j ury" ).
3. That indictment was superseded in May 28
th
of 2008, by the present case 08CRI0502 ("08 grand
jury") . Detective Martin was the sole state's witness at both indictments.
4. The defendant, as a Pro Se, authored the first version of the motion to dismiss on October 28
th
,
2009. She later amended it on January 8
th
, 2010.
5. The day she was supposed to argue her motion, March 3
rd
, 2012, Judge Brosnahan ordered a
psychologica! evaluation on her. She was arrested during t hat session and charged with
eavesdropping.
6. While in jail, the defendant hired a new lawyer. Mr. Albukerk rewrote her motion to dismiss based
on perjury and discovery violations and fi led it on July 26
th
, 2010. The stat e switched election to the
eavesdropping case on that same day.
7. Prosecution resumed on the present case after the di smi ssal of the eavesdropping case on June
19
th
, 2012.
8. On October 9
th
and 15
th
, 2012, the defendant argued her motion to dismiss.
9. On October 25
th
, 2012, Judge Goebel denied that motion by misinterpreting its facts and
misapplying the law, by ignoring the actual and substantial prejudices done to the defendant and
by ignoring the egregious discovery violations of the prosecution. The present motion is an
at t empt to address and correct those fact s:
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A. Misinterpretation of facts and misapplication of law
a. Misrepresentation of facts
i. According to the us/ega/.com website, prosecutorial misconduct amounts to violation of
court rules or ethical standard of law practice. Examples of such conduct are courtroom
mi sconduct (making improper remarks or improperl y introducing evidence designed t o
prejudice the jury), evidence misconduct (hiding, destroying, tampering evidence or
case files or records), falling to disclose evidence negating guilt, presenting false and
misleading evidence, use of unreliable and untruthful witnesses, hiding the hearsay's
nature f)f a witnes5. __ 3mDng these, the defendant based her motion to misconduct
related to an untruthful witness (perjury) and evidence (destroyi ng evidence favorable
t o the accused and failing t o disclose evidence negat ing her guilt ). Although Judge
Goebel , on Oct.3
rd
, 2012, encouraged the defendant's to use hearsay evidence during
her argument, the defendant never did. She presented documents that were produced
either by the Schiller Park police or sent to Detective Martin or the prosecutor.
Therefore, Judge Goebel can' t equate the facts of this motion to prosecutorial
misconduct based on hearsay. Detective Martin was an occurrence witness NOT a
hearsay witness.
II . On page 3 ofthe October 25
th
, 2012, transcript ("The t ranscript "), the j udge st at es "I ' m
not trying to slight your intelligence in any way, shape or form, but you did have
difficulty asking the proper questions and getting the evidence that you needed in."
Contrary to the judge' s statement, the defendant puts in 10 exhibits: the Schiller Park
Investigative Report {m3rked as Petitioner's exhibit 1), the DB grami jury transnipt
(marked as Petitioner' s exhibit 2), the Comcast's subpoena response for subscriber
informati on related to the defendant (marked as Petitioner' s exhibit 3), the Comcast' s
subpoena response regarding the alleged IP address used for the intrusion (marked as
Petitioner's exhibit 4), the email exchange between Mrs. Carol Spizzirri and Brian
Salerno, the first expert (marked as Petitioner' s exhibit 5), the email between Kyle
French and Detective Martin (marked as Petitioner' s exhibit 6), the email between
detective Martin and Don Peters, the second expert hired (marked as Petitioner' s
exhibit 7), the personal and confidential report sent to Mrs. Carol Spizzirri and detective
Marti n by Don Pet ers (marked as Peti tioner' s exhibit 8), the t ranscript ofthe Oct ober
9
th
, 2012, argument (marked as Petitioner's exhibit 9) and finally the 07 grand j ury
transcript (marked as Petitioner's exhibit 10). Except for petitioner's exhibit 9, all these
documents were given to the j udge. Moreover, petitioner's exhibits I , 3, 4, 5, 7 were
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also attached to the original motion. Therefore, stating that the defendant had difficulty
putting in the necessary evidence is a misrepresentation of the facts. Addit ionally, at the
closing of the October 15
th
, 2012, hearing, the defendant filed an Amended
Memorandum of Defendant Argument On Motion To Dismiss Computer Tampering
Charges ("Amended Memorandum" ) which was a summary of her hearing and should
have been used as a guideline if judge Goebel had difficulty ascertaining the defendant' s
views. Apparently, judge Goebel overlooked that memorandum.
ii i. Also on page 3 of the transcript, the judge, citing People v. Sampson, 406 III. App. 3d
1054, 943 N.E.2d 783, 348lU. Dec. 175, states "The grounds are a little bit dffferent as it
dealt mostly with hearsay in the Grand Jury. However, it does cite and go into perjury,
which are the grounds alleged here by Ms. Me!ongo." That's aiso a misrepresentation of
Sampson. Not only are the grounds completely different as explained below, but also,
that case doesn't go into perjury at alL In fact, an Acrobat Reader sear ch of the word
" perjury" returned no occurrence of it ; whereas the same search on the word "hearsay"
returns 18 occurrences on a 12-page document; which in itself is indicative of what that
case is about .
iv. Finally on page 7 of the transcript, judge Goebel states " additionally, the alleged
discovery violation f or fai li ng t o preserve t he computer, I don' t f ind that rises t o the
level of a due process or violation that would warrant dismissal of the charges in this
case as welL" That's a misrepresentation of what' s stated in the defendant' s motion and
Amended Memorandum. Both motions explicitly state that the defendant's laptop was
damaged, making -an inuependent revi ew of it impossible, that evidence favorable to
the accused was not preserved in SALF' s computers and servers, that said evidence is
forever lost and ftnaHy that the -state, fer over six years, has faHed to tender excu1patory
evidence requested by the defendant.
b. Misapplication of law
i. While dismissing the defendant's motion on October 25
th
, 2012, Judge Goebel used
Sampson as the guiding authority. However, that " circuit court agreed with the
defendant that the case was controlled by People v. Oliver, 368 III. App. 3d 690, 698-99,
307 III. Dec. 38, 859 N. E.2d 38 (2006) in whi ch the court held t hat a prosecutor engaged
in misconduct at the grand jury proceedings by withholding the hearsay nature of a
witness' s testimony and thereby violated the defendant's due process rights" , Sampson
at 1059. The defendant's motion is not about hearsay or the prosecutor withholding
the hearsay nature of Detective Martin' s testimony; rather, her motion is about perjury
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committed by that detective and discovery violations. Judge Goebel acknowledged that
much on page 2 of the transcript. These facts are controlled by, People v. J.H., 136 III . 2d
1, 143 III. Dec. 889, 554 N.E.2d 961 (due process ri ghts of defendant may be violated, as
wil l warrant dismissal of indictment, if prosecutor deliberately or intentionally misleads
grand jury, uses known perjured or false test imony, or presents other decept ive or
inaccurate evidence), People v. Rutledge, 257 III. App. 3d 769, 195 III. Dec. 925, 629 N.E.
2d 233 (in order to establish a perjury charge, the state must demonstrate that the
defendant not only made a false statement, but that the false statement was material
to the issue in question and that the defendant did not believe the statement to be
true), People v. Pecoraro, 175 III. 2d 294, 677 N.E.2d 875 (where this court, in a failure-
to-p-reserve-evidence case, adhered to the 'v-veH-reaso-ned principles set forth in
Trombetta and Youngblood for purposes of the Illinois due process clause), Brady v.
MaryJand, 373 US 83 (1963) {the suppression by the prosecution of evidence f.<l vQrabJe
to an accused upon request violates due process where the evidence is material either
to guil t or to punishment, irrespective of the good faith or bad faith of the prosecution}.
Therefore, applying Sampson to the facts of this motion is a mi sapplication of that case
law. In her Amended Memorandum, the defendant specifically mentioned Rutlegde,
Trombetta and Brady as the cont roll ing authorities in her mot ion. However, Judge
Goebel overlooked these authorities and chose to evaluate the defendant's motion in
the iight of Sampson which deais with hearsay, a different type of prosecutoriai
misconduct than those alleged by the defendant .
B. Actual and substantial prejudice resulted from grand jury's perjury
a. Perjury passes the Rutledge' s test
i. Detective Martin committed five counts of perjury during his 07 and 08 grand
jury testimonies. He witnessed that experts hired by SALF were able to trace
the defendant as the intruder using a server log, that once she accesses SALF' s
computers and servers she deleted files, that once she accesses SALF's
computers and servers, she changed a password that ended up deleting f iles,
that a Comcast IP address, used during the intrusion, was traced to her house
in Palatine, ll, and finally that the said IP address was billed to her. These
statements all pass the perjury test established in Rutledge in that they were
made under oath, material to the issue in point and known to be untrue.
Therefore the prosecution used perjured statements during the 07 and 08
grand jury.
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ii. Judge Goebel on page 7 of the transcript characterized these perjury counts as
mere inconsistencies stating "After reviewing all the exhibits in this case, which
were numerous and lengthy, this court does not find that the state or the
officer committed perjury. What the court does find is that there are some
inconsistencies". However, he never cited a legal authority supporting his
findings nor did he show how his "inconsistencies" fail the Rutledge's test .
Furthermore, he never evaluated whether the "inconsistencies" actually and
substantially prejudiced the defendant by establishing a probable cause where
none existed, US v. Omni Intem. Corp., 634 F. Supp. 1414 (D.i'v1d. 1986).
iii. A judge can't cavalierly create his own beliefs in the face of well-established
legal standards, he shcuk:! be faithful to the lavl and maintain professional
competence in it, Illinois Supreme Court Rule 63 A (1), Code ofjudicial
Conduct. The Illinois Supreme Court has repeat.edly establishe-d that its
rules are not mere suggestions. Rather, they have the force of law, and the
presumption must be that they will be obeyed and enforced as written.
People v. Houston, 226 Ill. 2d 135, 152 (2007); People v. Campbell, 224 Ill. 2d
80,87 (2006).
b. Actual and substantial prejudice
i. Though a defendant may not challenge the validity of an indictment,
indictments resulting from prosecutorial misconduct might be challenged,
People v. Reimer, 2012 IL App (1
st
) 101253, 971 N.E.2d 1134. "To warrant
dismissal of the indictment, however, a defendant must ordinarily show
that *** any prosecutorial misconduct affected the grand jury's
deliberations' People v. DiVincenzo, 183111. 2d at 257-58.
ii . Detective Martin' s testimonies during the 07 and 08 grand jury greatly
prejiJdiced the defendant in that he presented facts not substantiated by the
investigation. The deception of the prosecution was neither an accident nor a
mistake. After the dismissal ofthis case in Rolli ng Meadows, IL, the prosecutor
intentionally misled and deceived the grand jury to secure an indictment. He
transformed exculpatory evidence into irtCulpatory evi-d-ence stating} inter alia,
that experts hired by SALF were able to determine that the defendant intruded
in the organization's computers and servers using a server log where none of
the experts, Brian Salerno and Don Peters, ever did (see petitioner's exhibits 5,
7 and 8), that those experts stated that when she intruded in, she deleted data
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and changed a password that ended up deleting files, again none of the experts
made such a statement (see petitioner's exhibits 5, 7 and 8) and finally that the
Comcast IP address used for the intrusion was billed to the defendant and
traced to her house contrary to two subpoenas' responses by Comcast alleging
that the defendant wasn' t a customer and that Comcast couldn' t trace any
intrusion activity related to said IP address (see petitioner's exhibits 3 and 4) .
iii. The prosecution used known perjured stat ements t o mislead and misrepresent
facts to the grand jury. This fraud and deception, relevant to the grand jury to
estab!lsh probable cause, tainted and impeded the grand jury abi lity to return a
meaningful indictment. There is a long standing of Federal and Illinois cases
that warrant the of the :ndictment when decepti-on and fraud was
performed upon the grand jury, United States v. Hogan, 712 F. 2d 757 (2d Cir.
1983), Djvincenzo, PeopJe v. Barton, 190 III. App_ 3d 701, 138 Ill. Dec. 36, 546
N.E.2d 1091 (1989), Reimer. Therefore, the perjury, deception and fraud
committed upon the grand jury to secure the present indictment were actual
and substantial prejudices that violated the defendant' s due process and
warrant the dismissal of the indictment.
C. Discovery Violations impair a fair trial and violate the defendant's Due Process
a. Evidence negating guilt not properly preserved
i. The defendant is charged with computer tampering alleging remotely accessing
SALF's computers and servers. It takes two computers, the computer accessing
and the computer being accessed, to prove a remote intrusion. In the present
case, Detective Martin put the defendant's laptop in a locker room on
September 28
th
, 2006, where it got damaged. In Petiti oner' s exhibit 7, Don
Peters, the expert hired by SALF further stated that Carol Spizzirri , the
cvmplainant, opted not to preserve the evidence in the aiieged accessed
computers and servers. Moreover, SALF closed its door in July of 2009 and
disposed of its alleged accessed computers and servers. The damage to the
defendant' s laptop and the perpetual loss of favorable evidence in SALF's
computers and servers impede the defendant' 5 independent review of the
incident. According to Brady, such negligence on the part of the prosecution
violates the defendant's due process rights and consequently the indictment
should be dismissed. The Illinois Supreme Court in Pecacora citing Trombetta,
also recommends dismissal of the indictment when the state acted in bad faith
6
in accordance to its normal practice and when the evidence relevant to the
defendant is forever lost.
ii. Judge Goebel however, found it convenient to misrepresent this discovery
violation and to ignore the prejudice done onto the defendant. He failed to
evaluate the defendant' s grievances against well-established cases law such as
Pecacora, Trombetta and Youngblood on the issue. A judge shall not, in the
perf ormance of judici al duties, by words or conduct manifest bias or prejudice,
furthermore, he should be faithful to the law and maintain professional
competence in it, fltinois Supreme Court Rule 63 A(B) and 63 A(1}, Code of
Judicial Conduct. The Illinois Supreme Court has repeatedly established that
its rules are not mere suggestions. Rather, they have the force of law, and
the presumption must be that they will be obeyed and enfor ced as written.
Houston at 152; Campbell at 87.
b. J:xculpatory evidence never tendered
i. The present case is over six and half years. The defendant had submitted three
discovery motions requesting exculpatory evidence, inter alia, the memos, notes, and
reports of experts hired by SALF, individuals who corrupted SALF's system as alleged by
the complainant and the Illinois Attorney General expert' s findings in accord with the
Illinois Supreme Court Rule of Evidence 70S. On November 1ih, 2009, the state filed its
response to the defendant's motion for additional discovery stating that the requested
information couldn't be provided because the case was still under investigation.
However, a look at the police report, Petitioner's exhibit 1, reveals that the said
investigation was dosed on October 31
st
, 2006, more than 3 years before the state's
response. Unti l this day, the defendant has never received the requested exculpatory
evidence from the Schiller Park Police, the State Prosecutor or the Illinois Attorney
GeneraJ office_ A Brady's claim arise when the state fails to accede to a defense request
for disclosure of some specific kind of exculpatory evidence or when the state fails to
volunteer exculpatory evidence never requested, or requested in a general way.
According to Brady, the failure by the prosecution to provide the requested exculpatory
evidence violates the defendant' s due process rights and warrants dismissal of the
indictment.
iii. Judge Goebel unfortunately overlooked and misrepresented this part of the
motion. He faiied to see the prejudice done onto the defendant by the
prosecution withholding exculpatory evidence. He also completely ignored the
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prosecutor's lie of a pending investigation as the reason of withholding said
information. A judge shall not, in the performance of judicial duties, by words
or conduct manifest bias or prejudice, Illinois Supreme Court Rule 63 A(B), Code
of Judicial Conduct. The Illinois Supreme Court has repeatedly established
that its rules are not mere suggestions. Rather, they have the force of law,
and the presumption must be that they will be obeyed and enforced as
written. Houston at 152; Campbell at 67.
WHEREFORE, th defendant is urging this court to evaluat hf motion in the light of J.H., Rutledge,
Trombetta and Brady, the de facto authorities for her motion. The tests and standards established in
these cases are benchmarks against claims of perjury and discovery violations. Judge Goebel must
demonstrate and explain how the perjury counts alleged by the defendant in her motion and Amended
Memorandum pass or fail the Rutledge's test, how the result of that Rutledge's test influences his ruling in
the light of J.H. and finally, how the discovery violations raised by the defendant are applicable or
inapplicable to Brady and Trombetta. A judge misrepresenting the facts of a motion and misapplying the
law not only violates the Code of Judicial Conduct but deprives the defendant of a clear right to a fair trial.
Therefore, failure by Judge Goebel to properly evaluate the defendant' s claims in the light of the above
authorities wiH compel the def"ndant to petition the Hlinois 5upn:me Court for a Writ Of Mandamus
and/or permission for an interlocutory appeal.
Atty. No.: 99500
Attorney For: Annabel K. Melongo
Address: P.O. Box 5658
City/State/Zip: Chicago, IL 60680
Telephone: 312-415-6632
Respectfully Submitted,
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Defendant's lawyer
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