Strange days in court on trespassing charges

Editor’s note: The civil case of Christine Huff and Steve Whittington, plaintiffs, vs. Denise and Kevin Nesmith, defendants, is still pending before Judge Ron Pirrello (D). This story is part of our unpublished coverage of the legal proceedings concerning these parties, which has been an ongoing saga for more than four years. The civil case brought is scheduled for further testimony Aug. 13. The following story addresses a trespassing case between the parties fitting into the public’s right to know because of Phillip J. Nicolosi’s (R) nomination for Paul Logli’s seat as Winnebago County State’s Attorney by Winnebago County Board Chairman Scott Christiansen (R). The majority of this story was written in 2006 after the trespassing charges against Whittington were dismissed for the third time.

Here’s the strange case of Christine Huff and Steve Whittington vs. Denise and Kevin Nesmith. Huff and Whittington have brought a civil lawsuit against the Nesmiths before Judge Ronald Pirrello, which this paper has been observing since 2005. Since 2003, the dispute between these Rockton neighbors has been very emotional, complete with odd Rockton police actions; Huff and Whittington trying to sell their property; property-line disputes; bizarre, makeshift fences and trespassing signs; and trespassing charges.

The trespassing charges against Whittington brought the dispute into criminal court. This same case has technically been dismissed twice; but both times, it came back. Huff and Whittington allege this is through the influence of Village of Rockton Attorney Phil Nicolosi.

Jan. 25, 2006, Whittington was back in court for the third time on this charge, scheduled to go to trial at 2 p.m.

A very patient and explicit Judge Donald Hennessey, who was retired but came back on appointment to help with the court backlog, presided over what turned out to be an out-of-schedule afternoon.

From the start of the 2 p.m. call, the bailiff was directing anyone with a Rockton case to go out of the courtroom and see the prosecutor, Nicolosi, in the hall.

Hennessey addressed the courtroom, which had about 15 people in the gallery, saying that the pretrial process was important because any party “should hear what the prosecutor has in mind; the prosecutor has more power than the judge at this point. The prosecutor can discuss for no good reason to reduce fines, to lower the amount. At trial, the judge has discretion,” he concluded.

Beginning with no prosecutor present, the judge called up five cases in a row and rescheduled them, in very polite exchanges with the defendants, for between March 22 and April 26.

The next defendant failed to appear, and a Default Exparte Judgment was filed, i.e., the maximum fine was levied.

Another two defendants failed to appear and their state bench warrants were no longer stayed, i.e., they are subject to immediate arrest.

Getting up with the assistance of a cane, another defendant, who was charged with speeding, spoke up from gallery, went before the judge and said unknown to himself, his speedometer was broken at the time of his ticket in Rockton. He wanted more time to pay, and the judge directed him to Room 108, where traffic fines are paid.

Another defendant was rescheduled to April 26.

Then, after conferring with his bailiff as to where the Village of Rockton Attorney Nicolosi was, the judge called a recess and left the courtroom, seeming very frustrated. About 10 minutes later, he came back.

At 3:30 p.m., Nicolosi entered the courtroom.

The first case he presented failed because the officer involved was not present. He made a motion to continue, which was denied. The case was dismissed.

The next case he presented failed because the detective who was a witness was said to be upstairs, but not present in the courtroom. He made a motion to continue, which was denied. The case was dismissed.

On the next case, he made a motion to dismiss, which was granted.

In the next case, the defendant failed to appear, and a $4,000 warrant was issued.

A defendant appeared late for her appearance because she said she did not have a valid license and had to get a ride, which was late. Her case was rescheduled to March 1.

In the next failure-to-appear case, Nicolosi said he had communicated with Frank Vella’s office, the defendant’s lawyer, and asked for a two-week stay on the defendant’s $3,000 warrant. A stay update was scheduled for Feb. 22.

Then, the only trial of the day took place, where the defendant was ticketed for rolling through a stop sign. The ticketing officer was present and was questioned by Nicolosi. Not represented by an attorney, the defendant was informed by the judge of her right to question the officer, but she elected not to do so. The defendant was questioned by Nicolosi. The judge gave a verdict of “Guilty” and instructed the defendant to pay $156, with the ticket on her record, or to pay $214 with court supervision, and the ticket would not appear on her record.

At about 4 o’clock, Nicolosi quietly conferred with Assistant State’s Attorney Erin Haefner in front of the judge and then loudly announced: “Just a moment. I have to go out in the hallway.”

Apparently, a video had been given to the Assistant State’s Attorney by the Nesmiths that allegedly showed the incident where Whittington allegedly trespassed on their property. In a latter interview, First Deputy Winnebago County State’s Attorney Chuck Prorok told The Rock River Times the viewing of this video was one of the reasons for the delay in getting Whittington’s trial under way.

Whittington was arrested for criminal trespass May 21, 2005, upon the Nesmiths’ complaint.

Huff and Whittington allege they themselves tried to file trespassing charges against the Nesmiths at least seven times but the Rockton Police would not allow it. Instead of police report forms, Huff alleges she was given blank pieces of paper. She also said on four different occasions, police actually came to her house and apologized because their boss would not let them take action, and they wanted to keep their jobs. They were told it was not necessary to sign the one complaint they were allowed to file, and it expired.

Shortly before, on May 11, 2005, Huff and Whittington filed two lawsuits. One concerned the fence and signs the Nesmiths had erected between their properties and the losses Huff and Whittington claimed as a result from having to sell their house. The other lawsuit was against the Village of Rockton, alleging failure to enforce the sign ordinance as it applied to Nesmiths’ fence and sign postings, which were homemade, consisting of wooden stakes, string, wire and many flag-like strips of various colors.

Huff alleged that when she went to complain about the signs, ATV noise or trespassing on her property, “Chief [Stephen M.] Dickson would either tell me he had to speak to the Rockton Attorney Nicolosi or get on the phone. Do I think they’re guilty of malicious prosecution, yes I do.”

“I would say that’s inaccurate,” said Rockton Chief of Police Stephen M. Dickson, whose letter of recommendation was included in the résumé packet Nicolosi presented to the Winnebago County Board Republican Caucus, which made the recommendation for Nicolosi to Christiansen.

Dickson said of Huff’s allegations: “No, they are not accurate. Every time that they came to see us with an issue, another officer was assigned to deal with the issue. Later on, it got to the point where there were lawsuits between the Nesmiths and the Whittingtons and the Huffs where we made—I don’t know who all was named. At that point, there was really nothing more we could do than what they were already doing. So the case was already before Judge Pirrello. Everything was waiting to go to trial, and there were motions being filed. Essentially, what they were asking us to do was at—now this was after we had investigated and done all the other groundwork. Interestingly enough, she was never at the point where she would sign a complaint. She didn’t have anyone arrested. One time she agreed to, found out that the person was a juv

enile, and then changed her mind.”

Huff said she was asked to sign a complaint against a girl who was not riding the ATV on her property; the complaints she wanted to file concerned Nesmith’s sons and constant noise and damage caused by recreational vehicles.

Dickson said: “All I know is this is a dispute between two people—two adults who acted like children. And I don’t know where the case is today, but it could have easily been settled, I’m sure if cooler heads had prevailed, but such was the case.”

He concluded that the Winnebago County State’s Attorney directed him to pursue the dispute between the neighbors because the trespassing and civil case were in the courts, and the courts would decide the issues. He also noted Nicolosi recused himself early on in the dispute.

Huff stands by her allegations of malicious prosecution in the trespassing case filed against her boyfriend, Whittington. Their civil lawsuit against Rockton was dismissed three times because “Nicolosi found loopholes,” alleged Huff, alleging Nicolosi did not recuse himself in that case and represented Rockton. “Pirrello would allow us to refile, but I ran out of money to pursue both cases. Our paid legal fees are about $8,000. We still owe our attorney about two grand on his old work and another two grand for the next date, so we’ll owe him about four grand.”

What would seem to be a relatively simple matter of trespass turned out to be anything but, as shown by the court docket on the case.

The court docket tells an interesting story.

The original trespassing charge against Whittington, at the motion of the Asstistant State’s Attorney, City Attorney, was dismissed by motion of the state Aug. 4, 2005, by Judge Steve Nash.

A Motion to Reinstate the charge against Whittington was made Aug. 17, and the motion was heard and denied Sept. 1, 2005, by Nash.

A Notice of Motion to Reconsider was made Oct. 5, 2005, and heard and granted by Judge Fernando Enselma Oct. 14. The docket reads: “People of the State of Illinois present by CITY ATTORNEY. Defendant attorney fails to appear.”

The case was continued Dec. 23, 2005, and set for trial Jan. 25, 2006.

Then the docket entry for Jan. 5, 2006, reads: “DISMISSAL People of the State of Illinois present by Assistant State’s Attorney, CITY ATTORNEY. Defendant appears with RYAN HOLMES. On the motion of the State case is dismissed WITHOUT PREJUDICE. Judge: Hennessey Donald J. Clerk: TYP M.”

When asked about this case after the Jan. 25 hearing, Nicolosi said: “Be careful. Some docket entries are not 100 percent accurate.”

Apparently so.

First, Whittington, the defendant, appeared with Rene Hernandez as his attorney, not Ryan Holmes.

Second, because of all the dismissing and reconsidering, delays, particularly on the day of trial, when he sat there for two hours before the prosecutors could get their hallway meetings together to bring the case before the judge, Hernandez made a motion for the case to be dismissed “With Prejudice,” considering “the tremendous expense to my clients.”

“Your honor, it’s our motion,” protested Haefner, who assisted Nicolosi only on this case.

Clearly irritated with the delays of just that day, Judge Hennessey said, “If it was dismissed once or twice before, it will be dismissed “With Prejudice.’ That’s it!”

Oddly, today, the docket reads: “On the motion of the State, case is dismissed without prejudice.”

When asked why the state even made a motion to dismiss the case rather than trying it, Nicolosi replied: “Why, you have to direct that specific question to the state’s attorney. Part of the argument here is once I discovered who the parties were in this case—Nesmith would be the complaining witness—I had represented them as clients. I felt it would be improper for me to prosecute as the village attorney.”

Nicolosi recused himself, and Haefner handled the case in court Jan. 25, conferring quietly with Nicolosi frequently.

When this paper attempted to contact Haefner by phone to ask why the state made its motion to dismiss the charges, Prorok returned the call and said, “The reason was so that the village could refile them and find someone else to present them rather than the State’s Attorney.

“The Village Attorney, Phil Nicolosi, represents the complainant, Kevin Nesmith for a number of years; and accordingly, there’s a conflict of interest.

“Last summer, when this case came up for trial, Phil Nicolosi asked our law school intern, who was allowed to practice under Supreme Court Rule 71, to handle the case. That was fine—though there wasn’t sufficient evidence for prosecution, and we dismissed it.

“Mr. Nesmith complained that the case was dismissed. The dismissal was a “No Act” because we didn’t have the authority to appear on behalf of the Village of Rockton. The county, or state, cannot appear on behalf of a municipality unless we have an inter-governmental agreement to do so. It’s a simple matter of do we have the authority to do what we did? And I don’t think so.”

Prorok concluded, considering the evidence he had seen, “I told Mr. Nesmith that if someone had come to the State’s Attorney and asked us to charge it, we wouldn’t have charged it.”

Nicolosi said he had been Nesmith’s attorney “through the years, on and off.” When asked if it was more than one, five or 10 years, he replied, “More than five years.”

The following is an interview with Kevin Nesmith, who brought the charges against Whittington.

FS: What is your comment or reaction to the trespassing charges against Steve Whittington being dismissed?

Nesmith: “All I am is a witness. We have a video tape. Other folks found probable cause. There was evidence and everything. We filed a complaint on the day my kids were getting ready for prom. The police investigated. He [Whittington] goes ballistic and wild, and I’ve gotta do something. I had a lot of kids over at the house. He’s calling kids, ‘F—ing hillbillies.’”

FS: Who do you work for?

Nesmith: “That’s none of your business.”

FS: Do you or your firm do any work for the City of Rockton or the Rockton Police?

Nesmith: “I know where you’re getting this. My neighbors are pathetic liars. I’ve been asked this before a judge, and I don’t know the police chief.”

Nesmith then spoke of having to go before city council and defend himself against these alleged unfounded charges.

Nesmith: “I am a good person. It’s not that I seem to get away with things that I don’t. I treat people right.” He then mentioned that he did not know a “Roger in ordinance.”

Nesmith said he has lived in his house for 11 years, and the last three years have been horrible. He stated he owned the Rockton Ski Hill and many kids have enjoyed it over the years, adding that Huff and Whittington “threatened to prosecute kids for trespassing.”

FS: Is Paul or Phil Nicolosi your personal attorney?

Nesmith: “Phil. He’s been our personal attorney for a number of years, five or six, maybe more.” Nesmith said he has been in Saudi Arabia and had to have an attorney who could take care of things in case he died.

“I’ve never had any personal relationship with Phil. He’s clearly an personable, ethical and honest,” Nesmith emphasized.

He noted Nicolosi was aware of the conflict of interest and referred his case to another attorney because of it.

FS: Do you do any computer security consulting work for Rockton?

Nesmith: “No. I work for a big four accounting firm out of Chicago. I reported that when I was under oath. If they are auditing Rockton, I know nothing about it.”

FS: Did you make a complaint?

Nesmith: “ Steve was arrested because he went ballistic and was swearing and trespassing. I don’t know what was going on. They planted trees next to our property, and I did not care about it,”

He then related a disagreement with Whittington that he said happened on Mother’s Day in front of his family. “I got mad that day and erected ‘No Trespassing’ signs,” Nesmith said.

FS: How does this

keep getting refiled?

Nesmith: “It’s been dropped with prejudice, and it can be brought up again. They [Huff and Whittington] filed an ordinance violation because they can’t drop it and they [Prorok] want a state statute and intergovernmental agreement. But they can still prosecute” under state statute, Nesmith claimed.

FS: Why was it dropped the first time?

Nesmith: “The intern didn’t know what was going on. He really referred to no witnesses. We weren’t notified. The arresting officers weren’t notified. He dismissed it, said he had no authority to prosecute, and so it was reopened.”

FS: Prorok said you complained.

Nesmith: “I asked, why did you drop it?” Nesmith said he then had signed an agreement that he would not back out of being a witness and would proceed.

FS: So whose choice was it to reopen it, yours or Prorok’s?

Nesmith: “That was his choice, not mine, and he reopened it. This time we showed up, and he wanted all the officers there, too, and they decide they can’t do anything.”

He told me, ‘I’m put on the other side.’”

FS: What’s on the video?

Nesmith: “The content of the video tape is Steve grabbing a string or stake and throwing, it the stake, onto our property.”

Nesmith said back in January he used to let Whittington mow around bushes Whittington had planted adjacent to Nesmith’s property line, then Whittington put the “No Trespassing” signs up first. He claimed Whittington had three signs and he had two.

FS: Again, does your firm do any work for the City of Rockton or the Rockton Police department?

Nesmith: “I don’t believe the firm does. No. I’m sure they don’t for any of the entities.

“They’re [Huff and Whittington] very pathetic liars; at the end of the day, they’re very venomous.”

Then, he talked about the complaints about his Shi Tzu dogs barking from 7 a.m. to 7 p.m., and said three other neighbors had big Labradors.

FS: Please tell me again about your relationship with Phil Nicolosi.

Nesmith: “He’s my personal attorney. He’s not involved. He can’t be. I don’t even talk to Phil about this issue. If you’re suggesting that Phil is doing something unethical or illegal, you’re absolutely wrong.”

FS: Then why do these trespassing charges keep getting refiled?

Nesmith: “I asked a question and had them fix a wrong, and they did.”

FS: Then why was it dismissed again this time?

Nesmith: “I don’t understand it. I don’t have an answer for that. It’s a good question. It was a waste of my day.”

from the July 25-31, 2007, issue

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