Ex-Joliet police sergeant’s official misconduct case delayed by pretrial issues

The case against a retired Joliet police sergeant charged with unlawfully accessing the video of an arrested man overdosing in a squad vehicle faced further delays after prosecutors requested more time to gather evidence for a key pretrial hearing.

That evidence includes records on two independent investigations commissioned by the City of Joliet regarding retired Joliet police Sgt. Javier Esqueda, 53, and surveillance video that went missing during an outside investigation into the 2020 death of Eric Lurry, 37, according to a motion from Kendall County Assistant State’s Attorney Mark Shlifka.

Shlifka filed the motion on Thursday, the day before both sides in Esqueda’s case were scheduled to hold a hearing to determine whether evidence against Esqueda should be suppressed under the Illinois Whistleblower Act.

Shlifka asked for more time to gather evidence for the hearing after learning of the two independent investigations.

As a result, Judge Robert Pilmer decided on Friday to move the evidence suppression hearing to March to fit with the schedule of Esqueda’s attorney, Jeff Tomczak, who has a murder trial in December.

Esqueda’s trial, which has been delayed at least twice, is scheduled to occur some time afterward.

After Friday’s court hearing, Tomczak said he had subpoenaed witnesses and was ready for a hearing on his motion to suppress evidence until he received the motion for a continuance from Shlifka on Thursday afternoon.

“We basically had the entire command staff of [Joliet Police Department] ready to come in this afternoon,” Tomczak said.

Two of Tomczak’s subpoenaed witnesses include retired Joliet police chiefs Al Roehner and Dawn Malec.

Tomczak has motioned to suppress all evidence gathered in the police investigation as he contends it was done in retaliation against Esqueda for blowing the whistle on the video of Lurry’s Jan. 28, 2020 arrest. Tomczak argues the retaliatory investigation is a misdemeanor violation under the Illinois Whistleblower Act.

The police investigation resulted in official misconduct charges against Esqueda, who is accused of unlawfully accessing the Lurry video and showing it to CBS 2 Chicago. The TV station published a story about the video on June 30, 2020, which revealed Joliet police Sgt. Doug May – one of the officers involved in Lurry’s arrest – had slapped Lurry in the face, saying, “Wake up, [expletive]!”

After Lurry’s arrest, he died from what the Will County Coroner’s Office determined was a fatal overdose of drugs that were in his mouth at the time of his arrest.

Will County State’s Attorney James Glasgow declined to file charges against the officers involved Lurry’s arrest, including May, who slapped Lurry, or Joliet Police Officer Jose Tellez, who stopped the recording of the in-squad video system. Both officers were briefly suspended the following year.

The controversy over the Lurry video led to protests throughout that summer in Joliet, a federal lawsuit from Lurry’s widow, Nicole Lurry, and an ongoing civil investigation of the Joliet Police Department by Illinois Attorney General Kwame Raoul.

If Pilmer grants Tomczak’s motion to suppress police evidence, it could cripple the state’s case against Esqueda before it goes to trial.

Prosecutors have objected to Esqueda calling himself a whistleblower during trial because they argue that he is not one under the Illinois Whistleblower Act. Prosecutors have said Esqueda did not expose misconduct to a government authority or agency as required by law.

Shlifka told Pilmer on Friday that he didn’t believe a hearing on Tomczak’s motion was needed because there is nothing in the Illinois Whistleblower Act that gives Esqueda the right to suppress the evidence against him.

“It doesn’t exist. So even if the court were to find he’s a whistleblower, the court wouldn’t have the authority to suppress evidence or grant his motion,” Shlifka said.

Tomczak asked Pilmer to hear his evidence first and also consider issues he plans to raise regarding bad faith acts of law enforcement.

“There’s much case law out there relative to violation of statute being grounds to suppress evidence,” Tomczak said.

Police reports of the Esqueda investigation showed that one witness claimed Esqueda indicated he would use the Lurry video “as his ‘Trump Card’ if he was given discipline” over a 2019 confrontation with police and attendees of a prayer vigil.

Konika Morrow, 44, of Joliet, who was charged with obstruction of justice over the 2019 incident, has a pending federal lawsuit against Esqueda and several other officers.