Gutierrez seeks trial delay due to health concerns

The attorney for Robert Gutierrez, the St. Charles businessman charged with more than $100,000 in theft by deception, said his client be too ill to participate in his trial asked a judge to delay it until he can.

Attorney Liam Dixon gave Circuit Judge John Barsanti a stack of medical records detailing Gutierrez’s various conditions and said if his request is denied, then he would ask that his client be allowed to participate via Zoom.

Barsanti said he would read through the records and set Friday for a follow-up hearing requiring Gutierrez to be present in court.

Gutierrez, 74, was charged along with the late Kane County Circuit Clerk Thomas Hartwell in an alleged kickback scheme to steal $119,575 in public funds.

A grand jury indicted Gutierrez April 26, 2023, on seven felony counts of theft by deception of more than $100,000 and two counts of kickbacks to the late circuit clerk of $15,000, court records show.

The case against Hartwell – 19 felonies including misappropriating public funds while in office – ended with his death by suicide in his Palatine law office.

Now with a two-day jury trial set to begin April 4, Dixon said Gutierrez is in constant pain, takes multiple pain medications, has a heart condition and suffers incontinence caused by exposure to Agent Orange while he served in Vietnam.

“He could not even sit through a trial,” Dixon said.

Dixon called Veterans Treatment Court Coordinator Philip Wessel to testify to his client’s ill health.

“Mr. Gutierrez had applied to Veterans Treatment Court late last year,” Wessel said. “I did assessments with him to determine his appropriateness for the program.”

Gutierrez could not be accepted into the program because of his incontinence and use of opioids to control pain, Wessel said.

Wessel said a Veterans Administration social worker also determined that his participation in the Veterans Treatment Court would be more burdensome than helpful to him, Wessel said.

As to the many medications Gutierrez was taking, Wessel said he was provided with two full pages listing more than 20 medications, including for pain.

“The interview was probably about an hour or so,” Wessel said about when he assessed Gutierrez.

“He struggled to sit through it at times. You could tell he was not comfortable sitting in the chair...He did report that he had not taken any pain medications that day...because he would not be able to answer the questions very well,” Wessel said.

“Can he sit through a trial?” Assistant State’s Attorney Robert Dore asked.

“I’m not a doctor,” Wessel said. “I don’t know.”

Barsanti asked if Wessel performed any tests on Gutierrez; Wessel said no, that what he was testifying to was what Gutierrez told him.

Also under Barsanti’s questions, Wessel said opioids were on the list of medications Gutierrez brought him, and the program does not allow for opioids.

Barsanti said the issue is Gutierrez’s fitness for trial and his ability to assist in his defense.

Dixon said if his client does not take his pain medications, he would be distracted by extreme pain. Or, if he takes his pain medicine he would not be clear-headed to assist in his defense.

Barsanti said if Gutierrez does not overcome his physical ailments, he would not be any better by delaying a trial.

The option of Zoom would allow his client to be at home with his caretaker and could assist in his defense via text message, Dixon said.

“I’m not asking to move the trial, if he denies it,” Dixon said. “We are still ready to proceed to trial.”

The most serious charge Gutierrez faces is theft of more than $100,000, a Class 1 felony punishable by four to 15 years in prison and fines up to $25,000 or up to 48 months of probation, if convicted.