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Nicolosi on defense team in neighbor trespassing saga

April 14, 2010

Editor’s note: In the spirit of full disclosure, The Rock River Times’ Editor and Publisher Frank Schier has  been a friend of Christine Huff and Steve Whittington for years.

By Stuart R. Wahlin
Staff Writer

Although he began on the prosecution side in a spat between neighbors, former Winnebago County State’s Attorney Phil Nicolosi (R) is now serving as a defense attorney in a related civil lawsuit. (See “Strange days in court on trespassing charges” in the July 25-31, 2007, issue).

What began as a simple feud between neighbors in Rockton has escalated into a years-long legal debacle involving allegations of malicious prosecution and an alleged conflict of interest.

In the spring of 2005, Steve Whittington was arrested by Rockton Police on a complaint from neighbors Kevin and Denise Nesmith, who alleged Whittington had trespassed on their property.

At the time, Nicolosi was an attorney for the Village of Rockton, but he had also been acquainted with the Nesmiths through private practice. Because their relationship posed a conflict of interest, Nicolosi soon recused himself from the case, which was then handled by the state’s attorney’s office.

Whittington entered a plea of “not guilty” in June 2005. On a motion from the state the following August, the case was dismissed. Later that month, however, a motion to reinstate the criminal trespassing charge was made. The motion was denied in September, but prosecutors filed a motion to reconsider in October. Although the motion for reconsideration was granted, the case was once again dismissed without prejudice on a motion by the state in January 2006. A motion to clarify was made and granted the following March, but weary Judge Donald Hennessy ordered that the case be dismissed with prejudice, putting an end to repeated attempts to prosecute Whittington for the alleged trespassing.

Meantime, in 2005, Whittington and then-girlfriend Christine Huff, now his wife, filed suit in civil court, naming the Nesmiths, Rockton Police Chief Stephen Dickson and officer Justin Jobst as defendants. The litigation sought to enjoin the Nesmiths from coming onto Huff and Whittington’s property, and to order the Nesmiths to remove homemade signs between the two properties. Huff and Whittington argued the bitter spat with their neighbors allegedly caused them to incur a loss as a result of being forced to sell their home. Dickson and Jobst were named as defendants for allegedly not enforcing the village’s sign ordinance. Huff and Whittington allege they’d attempted to file numerous complaints against the Nesmiths, but that police allegedly would not take action.

The court ruled in favor of a $25,001 judgment for the plaintiffs in August 2007, and a subsequent request to appeal was dismissed in February 2008, but the case remains on the docket.

April 12, Nicolosi appeared in court on Nesmith’s behalf to argue that a bench warrant be vacated. He reported Nesmith was not present April 12 because he was in the hospital for a heart-related ailment. The warrant for Nesmith had been issued for failure to appear previously, but Nicolosi submitted letters from medical professionals indicating that Nesmith is being treated for cancer.

Attorneys for the plaintiffs objected, however, noting the letters gave no specific reason as to why Nesmith had failed to appear in court. They also noted that Nesmith had attempted to file for bankruptcy, but had been denied. They allege Nesmith earns about $180,000 annually, and that the case has been dragged out for too long.

Gulley vacated the bench warrant, but ordered that Nesmith turn over tax returns for 2008 and 2009.

A status hearing has been set for June 28.

From the April 14-20, 2010 issue

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