Defense claims prosecutor in Will County case ‘goaded’ them into mistrial

Defense attorneys for a man charged with harassing Will County State’s Attorney James Glasgow and his staff said that a special prosecutor forced a mistrial after realizing the weakness of his case in order to get a second trial.

On March 28, Richard Gabrys, 63, was on trial on charges alleging that he called the state’s attorney’s office with intent to abuse or harass Glasgow and his receptionists.

Gabrys’ two-day trial ended when Judge Sherri Hale granted his attorneys’ motion for a mistrial, court records show. The Herald-News was not at the trial.

One of Gabrys’ attorneys, Richard Waller, said Special Prosecutor William Elward had played an audio recording during closing arguments that had not been introduced as evidence in the case.

That an established, experienced and seasoned prosecuting attorney such as Mr. Elward could have committed this many egregious, prejudicial and unfounded errors in a two-day misdemeanor trial is simply incredible and should therefore not be believed.”

—  Richard Waller, attorney for Richard Gabrys

A June 21 motion from Gabrys’ attorney, Richard Waller, claims that Elward had committed many errors at trial, and he contends that Elward “goaded” the defense into motioning for a mistrial when he realized his case was going poorly.

Elward has not responded to the motion, and he did not return a call Friday.

Gabrys may still go to trial for a second time this year, but Waller and his other attorney, Ryan Locke, contend that the misdemeanor case should be tossed out altogether on double-jeopardy grounds.

Hale may decide on July 24 if Gabrys should get a second trial.

According to Waller’s motion, after Elward presented his evidence to the jury, Gabrys’ attorneys argued outside of the jury’s presence that he failed to introduce any evidence identifying Gabrys as the “individual who made the alleged calls.”

Elward acknowledged the absence of that evidence, and Hale – “in an extraordinary move” – allowed him to call a surprise witness: a police officer whose name and reports had not been disclosed to the defense in violation of Gabrys’ constitutional rights, Waller’s motion alleged.

After Gabrys’ attorneys again argued that the additional evidence did not “cure the critical defect” in Elward’s case, Hale denied Gabrys’ attorneys’ motion for a directed finding and brought the jury back into the courtroom, according to Waller’s motion.

In the presence of the jury, Gabrys was then admonished by Hale of his right to testify, which forced him to speak, improperly allowing the jury to hear his voice and allowing Elward to use that evidence against him, Waller’s motion contended.

Then, during closing arguments, Elward told the jury to “listen” to the language of a specific audio recording and then played the entirety of a “prejudicial audio recording” of Gabrys that had never been introduced as evidence, according to Waller’s motion.

Waller’s motion contended that Elward “goaded” Gabrys’ defense team into a mistrial. The motion alleged that Elward’s “self-serving statements” and errors at trial were “accidental” or that he did not want a mistrial “simply strains credulity.”

“That an established, experienced and seasoned prosecuting attorney such as Mr. Elward could have committed this many egregious, prejudicial and unfounded errors in a two-day misdemeanor trial is simply incredible and should therefore not be believed,” according to Waller’s motion.

The motion also alleged that Hale placed Gabrys in double jeopardy by allowing Elward to call a surprise witness.

“Permitting further trial at this point undermines the very point of the criminal justice system and the protections afforded by the Fifth Amendment,” according to Waller’s motion.