                                            2017 IL App (1st) 152454
                                                  No. 1-15-2454
                                                                        Fifth Division
                                                                        June 23, 2017
     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

                                                          )
     SYLLA BANGALY, Administrator of the Estate of        )
     Hawa Sissoko, Deceased,                              )
                                                          )
           Plaintiff,                                     )
                                                          )
     v.                                                   ) Appeal from the Circuit Court
                                                          ) of Cook County.
     ALFRED C. BAGIANNI, Individually and as Agent and )
     Employee of Roadway Express, Inc., a Delaware        ) No. 13 MC1 600168
     Corporation; ROADWAY EXPRESS, INC., a Delaware )
     Corporation, n/k/a YRC, a Wholly Owned Subsidiary of ) The Honorable
     YRC Worldwide, Inc., a Delaware Corporation; and     ) Daniel J. Lynch,
     YRC WORLDWIDE, INC., a Delaware Corporation,         ) Judge Presiding.
                                                          )
           Defendants                                     )
                                                          )
     (Bangaly Sylla,                                      )
           Contemnor-Appellant).                          )
                                                          )
     ______________________________________________________________________________

             PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
             Justices Hall and Reyes concurred in the judgment and opinion.

                                                    OPINION

¶1           The instant appeal concerns a criminal contempt finding arising out of wrongful death

         litigation in which the contemnor, Bangaly Sylla, 1 was involved as the administrator of the


             1
             We note that, due to inconsistencies in the record on appeal, Sylla was referred to as “Sylla
     Bangaly” in our earlier opinion concerning that litigation but is actually named “Bangaly Sylla.”
     No. 1-15-2454


        decedent’s estate. In connection with that case, Sylla, as administrator of decedent Hawa

        Sissoko’s estate, filed an affidavit of heirship averring that Sissoko had never been married

        and also submitted answers to interrogatories stating the same. However, shortly before trial,

        the defendants in that action discovered that Sissoko may have, in fact, been married to a

        New York cabdriver named Noumouke Keita. After an investigation by the counsel for the

        estate, a divorce decree was provided that purported to establish that Sissoko was not married

        at the time of her death. The defendants’ request to postpone the trial date to conduct further

        discovery was denied, and a jury found the defendants liable for Sissoko’s death and awarded

        $4.25 million to Sissoko’s estate, which consisted of her parents and siblings as her heirs.

        The trial court then permitted postjudgment discovery in order to determine Sissoko’s proper

        heirs. After a year of postjudgment proceedings, including a motion to intervene in the case

        filed by Keita, the trial court found that Sissoko had been married to Keita at the time of her

        death and vacated the judgment.

¶2         The trial court ordered the law firm representing the defendants to initiate indirect

        criminal contempt proceedings against Sylla based on his statements concerning Sissoko’s

        marital status. The firm was removed after Sylla objected to the firm’s appointment, claiming

        a conflict of interest. Thereafter, the State’s Attorney’s office was appointed to prosecute the

        contempt. After the State’s Attorney’s office investigated the matter, it ultimately declined to

        prosecute due to the belief that there was an inability to prove the charges. The trial court

        appointed a third prosecutor, who proceeded with the contempt process and took the case to

        trial. After a jury trial, the jury found Sylla to be in indirect criminal contempt. After hearing

        factors in aggravation and mitigation, the trial court sentenced him to six years in the Illinois

        Department of Corrections (IDOC). On appeal, Sylla raises a number of issues concerning


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     No. 1-15-2454


        the propriety of the indirect criminal contempt proceedings. We find that the trial court erred

        in denying Sylla’s motion for substitution of judge and, accordingly, reverse and remand for

        a new trial before a different trial judge.

¶3                                          BACKGROUND

¶4                                      I. Wrongful Death Lawsuit

¶5          The facts of the underlying wrongful death litigation which gave rise to the instant

        criminal contempt were exhaustively discussed by this court in our prior opinion on this

        matter, Bangaly v. Baggiani, 2014 IL App (1st) 123760. We briefly summarize those

        proceedings to give context to the contempt proceedings at issue in the instant case, taking all

        facts from our prior opinion.

¶6          On May 30, 2007, Sissoko was killed when a commercial tractor trailer truck struck her

        on I-80/90 near Chesterton, Indiana, while Sissoko was standing in the rightmost eastbound

        lane of the highway, crushing Sissoko between her vehicle and the tractor trailer. On

        November 21, 2007, Sylla, Sissoko’s paternal uncle, executed an affidavit of heirship, which

        averred that Sissoko’s parents were both still living and that Sissoko had eight siblings. The

        affidavit of heirship further stated: “HAWA SISSOKO was never married and never had nor

        adopted any children during her lifetime.” On the same day, the probate division of the

        circuit court of Cook County entered an order declaring that Sissoko’s parents and siblings

        “are the only heirs of the decedent.” On December 12, 2007, Sylla was appointed

        independent administrator of Sissoko’s estate.

¶7          On March 3, 2009, Sylla, in his capacity as administrator of Sissoko’s estate, filed a

        wrongful death action in the circuit court of Cook County against the driver of the tractor

        trailer, his employer, and the employer’s parent company. The complaint alleged that the


                                                      3
     No. 1-15-2454


        driver’s negligent operation of the tractor trailer caused Sissoko’s death and further alleged

        “[t]hat HAWA SISSOKO left surviving her parents *** and her brothers and sisters[,] ***

        all of whom are lawful heirs of the Estate of HAWA SISSOKO.” On December 7, 2009,

        Sylla filed answers to written interrogatories propounded by the defendants. In response to

        the interrogatory, “If the deceased was married at the date of death, state the date and place

        of such marriage and the name and address of the spouse of deceased,” Sylla answered, “The

        Plaintiff’s decedent was not married as of the date of her death.” In response to the

        interrogatory, “If the deceased has previously been married, state the name(s) and last known

        address(es) of the former spouse(s), the date(s) of the marriage(s) and the date(s) of

        separation and/or divorce,” Sylla answered, “The Plaintiff’s decedent had not been

        previously married before her death.”

¶8          On October 31, 2011, approximately two weeks before the November 14, 2011, date

        scheduled for trial, the defendants filed an emergency motion to dismiss the complaint

        pursuant to section 2-619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9)

        (West 2010)) or to strike the trial date, claiming that Sissoko had, in fact been married to

        Noumouke Keita at the time of her death, based on a Malian marriage certificate discovered

        among Sissoko’s personal belongings at the scene of the accident that had originally been

        mistranslated as a birth certificate. The trial court denied the motion to dismiss but struck the

        trial date.

¶9          On November 9, 2011, Sylla’s counsel produced a purported divorce decree for Sissoko

        and Keita, dated November 17, 2005. The trial court denied the defendants’ oral motion to

        take additional discovery as to the status of Sissoko’s marriage. However, on January 13,

        2012, the defendants filed an emergency motion to strike the trial date and for an evidentiary


                                                     4
       No. 1-15-2454


          hearing, claiming that they had discovered that the divorce decree might be fraudulent and

          requesting additional time to investigate the issue. The motion to strike the trial date was

          denied, and a jury trial proceeded on January 17, 2012. On January 24, 2012, the jury

          returned a verdict in favor of Sissoko’s estate and against the defendants, finding that the

          estate suffered $5 million in damages, which was reduced to $4.25 million due to Sissoko’s

          contributory negligence. The trial court entered judgment on the verdict the same day.

¶ 10          On January 31, 2012, the defendants filed a motion for limited posttrial discovery on the

          issue of Sissoko’s marriage. The trial court entered an order staying the execution of the

          judgment and granted the defendants’ motion for posttrial discovery. During the course of

          posttrial discovery, the issue shifted from the validity of the divorce decree to the validity of

          the marriage itself, with Sylla taking the position that the marriage had never been validly

          entered into and, therefore, the divorce decree was irrelevant.

¶ 11          The parties engaged in extensive posttrial discovery on the issue of the validity of the

          marriage, including live in-court depositions of several witnesses—including Keita, Sylla,

          and several experts on Malian law 2—and numerous affidavits from individuals in Mali.

          During the course of discovery, Keita sought to intervene in the action.

¶ 12          On December 13, 2012, the trial court found that Sissoko and Keita were validly married

          at the time of Sissoko’s death and that, therefore, he was the sole heir of Sissoko, not her

          parents or siblings. The trial court also granted Keita’s motion to intervene. On January 8,

          2013, the defendants filed a motion to vacate the judgment and for dismissal of the case,

          arguing that the judgment must be vacated, since Sissoko’s parents and siblings were not

          Sissoko’s next of kin. Keita also filed a motion, asking for only the damages portion of the

              2
                 The marriage was a proxy marriage entered into under Malian law, with Keita being represented
       by his brother during the ceremony.
                                                          5
       No. 1-15-2454


           judgment to be dismissed and seeking leave to amend the complaint to add him as Sissoko’s

           sole heir. On January 29, 2013, the trial court vacated the judgment as to both liability and

           damages and dismissed the lawsuit with prejudice.

¶ 13           On appeal, we affirmed the trial court’s judgment in most respects, but found that Keita

           should have been permitted to amend the complaint to list him as the sole heir of Sissoko’s

           estate. Bangaly, 2014 IL App (1st) 123760, ¶¶ 222, 223. After our opinion, Keita and the

           defendants settled his lawsuit.

¶ 14                                         II. Contempt Proceedings

¶ 15           While the appeals in the underlying litigation were pending, the defendants in that case

           filed a motion for sanctions against Sylla, Sissoko’s parents, and the attorney representing the

           estate, claiming that “[t]he misconduct of the respondents caused the defendants and this

           Court to incur the expense of a trial based on perjury, forgery, fraud and a false premise

           which necessitated these [posttrial] proceedings to determine the truth of the heirship of the

           Estate of Hawa Sissoko.” With respect to Sylla, the motion claimed that Sylla falsely filed an

           affidavit averring that Sissoko had never been married and, in pleadings and through

           discovery responses, falsely claimed that Sissoko was never married. The motion pointed to

           deposition testimony that it argued established that Sylla had attended the wedding between

           Sissoko and Keita and had met Keita several times, and also argued that Sylla was involved

           in procuring the fraudulent divorce decree. The motion also pointed to the trial court’s

           findings that Sylla, Sissoko’s parents, and Keita had perpetrated a fraud on the court. 3




               3
                  We note that the trial court’s findings of fraud were raised on appeal in connection with the trial
       court’s dismissal of the complaint and denial of leave to amend. We found that “there was no way that the
       trial court could have properly found that Keita had committed fraud by clear and convincing evidence”
       (Bangaly, 2014 IL App (1st) 123760, ¶ 208) and found that we had no need to consider the findings of
                                                             6
       No. 1-15-2454


¶ 16           On August 21, 2013, the defendants, Sylla, and the attorney representing the estate came

           before the trial court for a hearing on the sanctions motion, where the court informed Sylla’s

           counsel:

                   “I have some thoughts about how, in fact, the Court should address what it is that Mr.

                   Sylla did or didn’t do in the context of these proceedings overall, and so I’m not quite

                   sure that I’m prepared to—to proceed on the sanctions request at this time. I—I have

                   some other thoughts in mind about it. And I know that comes as a bit of a surprise for

                   you, perhaps, but they’re not civil in nature. And so we need to address that this

                   morning. ***

                       And it’s an Indirect Criminal Contempt Petition that’s going to be drafted today.

                   He’ll be served with that today, and we need a Bond Hearing, so I have the Deputies

                   here. He is not to leave the courthouse, not to leave the courtroom. There’s a

                   conference room for you to speak to him in.

                       It’s my determination, certainly at this juncture, that, perhaps, that might be what

                   the Court needs to do to render justice regarding your client, so…And we can have

                   some discussions about the scope and the nature of that hearing; but at this point, all

                   we need to do—And Mr. Montgomery [of Williams Montgomery and John (WMJ),

                   the law firm representing the defendants in the wrongful death action,] is here. I’m

                   not going to get the State’s Attorney’s Office involved. That would be an utter waste

                   of resources. Mr. Montgomery will, or his firm will, act as quote, unquote ‘the

                   prosecutor.’ ”




       fraud as to Sissoko’s family, as there was an alternate basis for affirming (Bangaly, 2014 IL App (1st)
       123760, ¶ 192).
                                                            7
       No. 1-15-2454


           The trial court then addressed Montgomery and informed him of the allegations that the

           contempt petition should include. On appeal, Sylla does not argue whether a court can

           conduct a bond hearing before the filing of a petition for contempt.

¶ 17           The court indicated to Sylla’s counsel that “at this point, my inclination is that it’s minor

           contempt; in other words, a maximum penalty would be six months in jail or less, less than

           six months; or a $500 fine. And it’s separate and distinct, at this juncture at least, from the

           Sanction Petition. So those are the sort of things he should be told about.” 4 Sylla’s counsel

           clarified that the court would not be hearing argument on the sanctions motion with respect

           to Sylla that day, and the trial court further indicated that the sanctions motion would be

           entered and continued. The court provided counsel a copy of an affidavit of assets and

           liabilities form, stating that “this gives you some sort of things that are considered for

           paupers when they present Petitions. Those are similar things that are presented in criminal

           cases. You may be aware of that, but I’m not sure if you are. And I know this has been

           sprung on you, Counsel. I—I recognize that. So any other questions you might have, I’ll be

           happy to assist you with them.”

¶ 18           Sylla’s counsel confirmed that “it has been sprung on me, Judge,” and noted that he had

           been prepared to argue about Sylla’s knowledge but “if I’m understanding the Court, what

           you’re saying is it’s fait accompli. You’ve already reached a decision. We’re going straight

           to a Bond Hearing.” The court responded that “[a]ctually, this is the beginning of a process”

           and that the court would be willing to listen to any arguments during the contempt hearing

           itself, but that the bond hearing would occur that day. The court noted that “[t]he Court

           hasn’t made its mind up at all. It’s—It’s just saying that it’s appropriate for a Petition to be

               4
                 We note that Sylla was present in court during these proceedings; however, there was no
       interpreter present and the record indicates that Sylla spoke limited English.
                                                          8
       No. 1-15-2454


          drafted and for your client to be given an opportunity to defend against it. The nature and

          scope of the hearing and what the Court needs or doesn’t need, moving forward will be the

          subject of legal discussion between the attorneys and the Court[.]”

¶ 19         Later, after arguments on the sanctions motion with respect to the attorney representing

          the estate had concluded, Sylla’s counsel asked to approach the court. Counsel asked:

                       “COUNSEL: Judge, you had foreshadowed a little bit that I was being surprised

                 by the conduct and the action that the Court is taking in declining to hear any

                 arguments on the substantive merits of the motion [for sanctions] and instead having

                 Mr. Sylla apparently arrested, as I understand. And I guess I just ask for clarification

                 from the Court. He is not free to leave?

                       THE COURT: Not free to leave.

                       COUNSEL: You found probable cause for his arrest?

                       THE COURT: Yes.

                       COUNSEL: And the Court wants to hold a Bond Hearing and ultimately an

                 Indirect Civil contempt hearing?

                       THE COURT: Criminal contempt.

                       COUNSEL: Criminal contempt.”

          Counsel then expressed concern that he was a civil, not criminal attorney, and that it would

          be in Sylla’s best interest to have a criminal attorney addressing the matter. Counsel asked

          for a continuance of the bond hearing so that Sylla could have a criminal attorney present,

          but the court indicated that while counsel could have such a continuance, Sylla would be held

          in lockup pending the bond hearing. In response, counsel responded that “if the question [is]

          presented as to whether I would rather put this over and see him in lockup until I get a

                                                       9
       No. 1-15-2454


          criminal defense attorney or conduct a Bond Hearing for which I have little or no experience,

          I would say the latter; that I would rather conduct a Bond Hearing now rather than subject

          this citizen, this gentleman, to being locked up.”

¶ 20         On August 21, 2013, WMJ filed a petition for indirect criminal contempt against Sylla.

          The petition stated four grounds: (1) that, on November 21, 2007, Sylla “knowingly and

          intentionally and without legal justification, signed and filed a false affidavit of heirship ***

          stating that Hawa Sissoko was never married when he knew this to be false”; (2) that, on

          March 3, 2009, Sylla “knowingly and intentionally and without legal justification filed a

          complaint *** which falsely alleged the beneficiaries/heirs of Hawa Sissoko which he knew

          to be false”; (3) that, on December 7, 2009, Sylla “knowingly and intentionally and without

          legal justification swore to and filed false answers to interrogatories which falsely stated ***

          that Hawa Sissoko had not been married before her death”; and (4) that, in early October or

          November of 2011, Sylla “knowingly and intentionally and without legal justification

          procured or assisted in procuring a fraudulent divorce decree which was presented to the

          court ***.”

¶ 21         On September 3, 2013, Sylla, through his civil counsel, filed a motion for substitution of

          judge as of right “pursuant to 735 ILCS 5/2-1001,” a civil statute. On September 4, 2013,

          criminal counsel was retained and entered an appearance on Sylla’s behalf. On September 5,

          2013, the new counsel filed a “supplemental motion for substitution of judge” under the

          criminal statute, noting that the initial motion had requested substitution under the civil

          counterpart to section 114-5 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114-5

          (West 2012)), which was the section of the Code addressing automatic substitution of judge

          in a criminal matter.


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       No. 1-15-2454


¶ 22         On September 6, 2013, WMJ filed an objection to Sylla’s motion for substitution of

          judge, claiming that the initial motion was filed pursuant to the civil statute, not the criminal

          statute, and therefore did not satisfy the requirements for substitution of judge as of right

          under the criminal statute. The objection did not mention the September 5 supplement, but at

          the hearing on the motion, WMJ argued that the supplemental motion was untimely and

          could not cure the defects of the initial motion. On September 10, 2013, the trial court denied

          respondent’s motion as untimely.

¶ 23         Sylla then filed a motion for substitution of judge for cause, and, on January 8, 2014, his

          motion was transferred to the presiding judge of the law division, who transferred the motion

          to a different judge for hearing on the motion. Sylla’s motion was denied without prejudice

          on February 6, 2014, and Sylla then filed a motion to dismiss WMJ as the prosecutor of the

          indirect criminal contempt. Sylla claimed that WMJ was the law firm representing the

          defendants in the underlying wrongful death case and, prior to its appointment as prosecutor,

          WMJ had filed a motion for sanctions against Sylla and the attorney and law firm

          representing the estate, seeking monetary sanctions in excess of $1 million, which was still

          pending. Sylla argued that the trial court had not first appointed the State’s Attorney’s office,

          as required, and instead appointed an interested party as the prosecutor. Accordingly, Sylla

          requested that WMJ be removed as the prosecutor of the criminal contempt.

¶ 24         On April 21, 2014, Sylla’s motion to remove WMJ as the prosecutor was granted and the

          State’s Attorney’s office was appointed to prosecute the matter. On April 22, 2014, Sylla

          filed another motion for substitution of judge as of right, arguing that “[a]s we know now

          (because the Court removed the firm), the appointment of the law firm of WM&J as special

          prosecutor in this matter lends little or no legitimacy to any of [the] responses filed by its


                                                       11
       No. 1-15-2454


          attorneys.” On May 20, 2014, Sylla’s motion for substitution of judge was denied, with the

          court noting that WMJ’s presence as the prosecutor at the time was irrelevant to the court’s

          denial of the initial motion for substitution due to its untimeliness. At that hearing, the court

          made clear that, “[i]t could be that the Court, if he were to be found guilty of contempt, could

          consider the allegations and any determination by a trier of fact [to be] a major contempt.”

¶ 25         On October 30, 2014, after a pretrial status hearing, the trial court entered an order,

          noting that “the Cook County State’s Attorney’s Office indicated in open court that it was

          declining to further prosecute these contempt allegations; that this Court denied the Office’s

          request; [and] that this Court requested the Office[ ] to provide its reasons for its decision

          (over respondent’s objection).” The transcript from that hearing indicates that the assistant

          State’s Attorney (ASA) informed the trial court that, after “a thorough review” by the State’s

          Attorney’s office, “the State’s Attorney’s Office has decided to decline prosecution in this

          matter.” The ASA explained that the State’s Attorney’s office “takes its burden very

          seriously, and at this point in time, the State does not believe that it should proceed further.”

          After questioning by the trial court, the ASA indicated that there had been an internal report

          prepared concerning the charge that “relates to all the investigations we’ve done and what

          would be involved in painting the proofs and the likelihood of success,” but that he believed

          it would be protected work product that would not be available for review by the trial court.

          The trial court instructed the ASA to check on whether that document could be turned over to

          the trial court, as a criminal contempt proceeding was sui generis and “you’re, in essence, an

          agent of the Court. And perhaps these might be the circumstances where the Court needs to

          understand why it is you’re declining to prosecute. That’s the way I look at it.”




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       No. 1-15-2454


¶ 26         The parties came before the trial court again on November 14, 2014, concerning the trial

          court’s ability to review any of the State’s Attorney’s office’s materials, where a supervising

          ASA informed the trial court that “we take a very hard and fast line and we simply do not

          share that with anyone.” The trial court then engaged in a discussion with the ASA

          concerning the circumstances under which State’s Attorney’s office could disclose its

          reasoning to the trial court, noting that “I’m a bystander, and I just need to know what you’re

          looking at and what you’re overlooking. The Court made a decision long ago that there was a

          reasonable probability of conviction which is what brought forth these sort of allegations

          against this defendant, and he’s been defending against them now for a year, and the

          prosecutor’s office is stepping up and telling me in a conclusory way that they’re going to

          decline, they don’t believe they can meet the burden of proof.” At this point, Sylla’s counsel

          interjected and stated that, “based on kind of the direction that this is going, I just want to get

          on the record that I think we’ve kind of crossed the line here on violation of separation of

          powers, and I want that to be clear that that’s the defendant’s position at this point after [the

          ASA] has made clear—” The trial court then stated:

                       “That’s exactly what my concern is here, counsel, separation of powers. It’s the

                 prosecutor’s office exercising the Court’s power.

                       I know that’s my perspective on it, and I respect and appreciate your perspective

                 on it, where the judiciary would be in essence becoming the executive so to speak. I

                 understand that. I’m appreciative of it, and I think my remarks bear that out today.

                       I’m a bystander here, and this unfolded in the presence of the Court, and in

                 essence the victim here is the Court so to speak, a three-year proceeding in a case

                 that’s involving fraud and fraud to the tune of a $20 million request of a jury and a


                                                        13
       No. 1-15-2454


                 $4.25 million award with all the underlying facts and circumstances surrounding

                 contributory and comparative negligence itself. So the record bears all that out.

                       I understand your concern here, counsel. That’s why I’m trying to be cautious and

                 careful how this is exercised, but I can’t be informed by a conclusion after I’ve

                 witnessed what it is that’s transpired here.

                       I want to be informed by a good decision and things that perhaps the Court has

                 overlooked, but conclusions won’t do that for me, and they certainly wouldn’t do that

                 for anyone who may be called upon to look at this after the Cook County State[’s]

                 Attorney’s Office declines.”

¶ 27         On November 20, 2014, Sylla filed a motion requesting the trial judge to recuse himself

          from the contempt proceedings. Sylla argued that the trial judge’s comments that he was a

          bystander, or witness, to the contempt charges and had “made a decision long ago that there

          was a reasonable probability of conviction” crossed a line and violated the separation of

          powers. Sylla further argued that a criminal contempt proceeding required deliberateness and

          caution, which was “a problem” when the trial judge “is a witness to a matter that he intends

          to preside over and has demonstrated, both implicitly and explicitly, that he is invested in a

          predetermined outcome of Sylla’s guilt.”

¶ 28         On January 6, 2015, Sylla filed a supplement to his motion requesting the trial judge to

          recuse himself, noting that the trial judge would be appointing a third prosecutor, Terry A.

          Ekl, to prosecute the matter instead of dismissing the contempt petition after the State’s

          Attorney’s office declined to prosecute. The motion claimed that the trial judge “has

          consistently and persistently demonstrated an inability to be impartial to Bangaly Sylla and

          has shown a prejudgment of the evidence (and likely its admissibility).”


                                                      14
       No. 1-15-2454


¶ 29         On January 9, 2015, the trial court denied Sylla’s motion for recusal and, on February 5,

          2015, appointed Ekl as prosecutor of the contempt petition. On February 13, 2015, Sylla filed

          a motion to strike the appointment of Ekl as prosecutor, arguing that under the statute

          concerning appointment of a special prosecutor, a special prosecutor could only be appointed

          where the State’s Attorney’s office was sick or absent, unable to attend, or was interested in

          the cause or proceeding. In the instant case, none of those situations applied, and the State’s

          Attorney’s office was not participating in the proceeding due to the exercise of its

          prosecutorial discretion. Sylla further argued that the trial court’s appointment of a

          subsequent special prosecutor violated the separation of powers and also violated due

          process. On March 20, 2015, the motion to strike the appointment of Ekl was denied.

¶ 30         On April 27, 2015, the trial court entered an order dismissing count IV of the contempt

          petition, which had provided that, in early October or November of 2011, Sylla “knowingly

          and intentionally and without legal justification procured or assisted in procuring a fraudulent

          divorce decree which was presented to the court.”

¶ 31                               III. Indirect Criminal Contempt Trial

¶ 32         On May 11, 2015, the first day of trial, the prosecution sought leave to amend the

          allegations of the petition for indirect criminal contempt to include allegations that Sylla’s

          conduct obstructed, interfered, or hindered a court in the administration of justice in a court

          proceeding; the trial court granted the prosecution leave to do so; and the prosecution filed

          the amended petition on May 12, 2015. The amended petition alleged three counts. Count I

          alleged that “[o]n or about November 21, 2007, Respondent knowingly and intentionally and

          without legal justification signed and filed a false Affidavit of Heirship *** stating that Hawa

          Sissoko was never married when he knew this to be false. That by making said statement


                                                      15
       No. 1-15-2454


          Respondent obstructed, interfered and/or hindered a party or the court in the administration

          of justice in court proceedings.” Count II alleged that “[o]n or about March 3, 2009,

          Respondent knowingly and intentionally and without legal justification filed a complaint ***

          and falsely alleged beneficiaries/heirs of Hawa Sissoko which he knew to be false. That by

          making that statement Respondent obstructed, interfered and/or hindered a party or the court

          in the administration of justice in court proceedings.” Count III alleged that “[o]n or about

          December 7, 2009, Respondent knowingly and intentionally and without legal justification

          swore to and filed false answers to interrogatories which falsely stated *** that Hawa

          Sissoko had not been married before her death. That by making said statement Respondent

          obstructed, interfered and/or hindered a party or the court in the administration of justice in

          court proceedings.”

¶ 33                                       A. Hanson Williams

¶ 34         The first witness on behalf of the prosecution was Hanson Williams, one of the attorneys

          representing the defendants in the wrongful death action, who explained to the jury the

          process of filing a wrongful death action and the effect that the identity of the decedent’s

          heirs could have on the damages portion of the lawsuit. Williams also identified the affidavit

          of heirship filed by Sylla in connection with the order appointing him as administrator of

          Sissoko’s estate, the complaint in the wrongful death action filed by Sylla in his capacity as

          administrator of the estate, and the answers to interrogatories filed by Sylla in the wrongful

          death action.

¶ 35         Williams also testified as to the history of the wrongful death litigation—including the

          posttrial discovery, vacation of the judgment, and appeal—and about the number of hours

          spent by WMJ in unraveling the issues concerning the rightful heirs to Sissoko’s estate.


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       No. 1-15-2454


          Williams also published several excerpts from the evidence deposition Sylla gave in the

          underlying case. In the deposition, Sylla testified that he read the answers to the

          interrogatories that he signed at the time that he signed them. Sylla further testified that he

          met with the attorney in an earlier Indiana wrongful death case filed by the estate and

          informed him that Sissoko was not married because “[i]f she had been married, somebody

          would have told me.” Sylla testified that he did not ask Sissoko’s parents whether she was

          married, nor did he conduct any investigation to discover whether she was married.

¶ 36         On cross-examination, Williams testified that the complaint in the wrongful death action

          was unverified and was signed by the attorney representing the estate, not by Sylla himself.

          Williams further testified that answers to interrogatories were typically drafted by the

          attorneys. Williams also testified that Sylla was not Sissoko’s heir and would not have been

          entitled to any portion of a wrongful death verdict.

¶ 37                                        B. Noumouke Keita

¶ 38         Noumouke Keita, Sissoko’s husband, testified through an interpreter that he married

          Sissoko in July 1998 and that she came to the United States to live with him in New York in

          2000. Keita testified that after Sissoko moved to Chicago to live with Sylla and his wife and

          to work braiding hair, Keita visited her twice. On these visits, Keita testified that he had met

          both Sylla and his wife. On one 2006 visit, Sissoko informed Sylla that Keita was her

          husband. Keita also testified that Sylla contacted him to inform him of Sissoko’s death.

¶ 39         The parties stipulated that Keita had given an answer during an evidence deposition in

          which he testified that he met Sylla at the house of an individual named Ibrahim Thera, but

          on cross-examination, Keita testified that he met Sylla “at his place, not Thera’s place.”




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       No. 1-15-2454


¶ 40                                  C. Motion for Directed Verdict

¶ 41         The prosecution then rested, and Sylla’s counsel made a motion for a directed verdict.

          The trial court granted the motion for directed verdict as to the count concerning the

          allegations in the complaint because the complaint was signed by the attorney for the estate

          and not by Sylla. Accordingly, the only counts remaining in the petition concerned the

          affidavit of heirship and the answers to interrogatories.

¶ 42                                        D. Aminata Konde

¶ 43         Aminata Konde, Sylla’s wife, testified through an interpreter that Sissoko came to live

          with her and Sylla in 2005 and worked with Konde braiding hair. Konde testified that, after

          Sissoko’s death, there was a seven-day funeral held at Konde and Sylla’s home, and Keita

          did not attend. Konde testified that she had never met Keita and had “never heard of him,”

          nor had he ever come to her hair-braiding shop. Sissoko never informed Konde that she was

          married, nor had Konde ever observed anyone introducing himself to Sylla as Sissoko’s

          husband. Konde testified that during the time that Sissoko lived with her and Sylla, she asked

          Konde to help her find a husband because she wanted to marry and have a child.

¶ 44         On cross-examination, Konde testified that Sylla was close with his brother, Sissoko’s

          father, and spoke often with him. She further testified that Sissoko informed her that she was

          not married.

¶ 45                                  E. Jury Verdict and Sentencing

¶ 46         On May 12, 2015, the jury found Sylla guilty of contempt of court for filing the affidavit

          of heirship and for filing the answers to interrogatories. On May 13, 2015, the trial court

          entered judgment on the jury’s verdict.




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       No. 1-15-2454


¶ 47         On June 4, 2015, the trial court entered an order extending Sylla’s time to file a posttrial

          motion and, on June 26, 2015, Sylla filed a posttrial motion, which was denied by the trial

          court on July 14, 2015. Sylla was sentenced to six years in the Illinois Department of

          Corrections, followed by three years of mandatory supervised release.

¶ 48         At the sentencing hearing, Sylla’s counsel argued for probation, while the prosecution

          argued that “a period of incarceration is mandated” due to the serious nature of Sylla’s

          conduct and asked the court “to impose whatever the Court feels to be an appropriate terms

          of years in the Illinois Department of Corrections.” The court found that probation was not

          appropriate and “would seriously deprecate the nature of this offense given the fact that it

          was the Court that ultimately through all of the participants in these proceedings that was

          assailed by this conduct, by this failure to bring the proper parties, by this failure all along to

          cease these proceedings and dismiss the case.” In determining an appropriate sentence, the

          court noted that “ultimately this is grounded in perjury and obstruction of justice” (Class 3

          and Class 4 felonies, respectively), but that there were also other statutes which it found

          instructive in fashioning a sentence. The court pointed to residential burglary (a Class 1

          nonprobational felony), which was distinguished from burglary in that “when you burglarize

          and commit the same sort of acts within a residence, you violated the sanctity of a home and

          that’s tantamount to what’s occurred here in violating the sanctity of a court and a court

          proceeding and, in essence, violating or abusing, I should say, the right of free access that

          persons are given to come into courthouses.” The court also identified as instructive: (1) theft

          of property between $500,000 and $1 million (a Class 1 nonprobational felony); (2) theft of

          property exceeding $1 million (a Class X nonprobational felony); and (3) identity theft where

          property exceeding $100,000 in value is taken (a Class X nonprobational felony).


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       No. 1-15-2454


¶ 49         On August 13, 2015, Sylla filed a motion to reconsider sentence, which was denied on

          September 3, 2015. Sylla filed a notice of appeal the same day and this appeal follows.

¶ 50                                            ANALYSIS

¶ 51         On appeal, Sylla raises a number of issues, arguing: (1) the evidence presented was

          insufficient; (2) the trial court erred in admitting certain evidence; (3) the trial court

          appointed prosecutors with a personal and/or financial interest; (4) the trial court erred in

          denying Sylla’s motion for substitution of judge as of right; (5) the trial judge was biased; (6)

          the trial court violated the separation of powers; (7) the special prosecutor amended the

          charging instrument without Sylla’s knowledge; (8) the special prosecutor engaged in

          misconduct; (9) the jury instructions were defective; (10) Sylla received ineffective

          assistance of counsel; (11) the trial court considered impermissible factors in sentencing

          Sylla; and (12) Sylla’s sentence was excessive. We find Sylla’s arguments concerning the

          denial of his motion for substitution of judge as of right to be dispositive of the instant

          appeal, and accordingly limit our discussion to an analysis of that issue.

¶ 52         A defendant in an indirect criminal contempt proceeding may move for a substitution of

          judge under section 114-5 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS

          5/114-5 (West 2012)). SKS & Associates, Inc. v. Dart, 2012 IL App (1st) 103504, ¶ 21; see

          People ex rel. Kunce v. Hogan, 67 Ill. 2d 55, 63 (1977) (discussing section 114-5 in

          connection with a contempt finding). Section 114-5(a) provides:

                 “Within 10 days after a cause involving only one defendant has been placed on the

                 trial call of a judge the defendant may move the court in writing for a substitution of

                 that judge on the ground that such judge is so prejudiced against him that he cannot

                 receive a fair trial. Upon the filing of such a motion the court shall proceed no further


                                                       20
       No. 1-15-2454


                 in the cause but shall transfer it to another judge not named in the motion. The

                 defendant may name only one judge as prejudiced, pursuant to this subsection;

                 provided, however, that in a case in which the offense charged is a Class X felony or

                 may be punished by death or life imprisonment, the defendant may name two judges

                 as prejudiced.” 725 ILCS 5/114-5(a) (West 2012).

¶ 53         Thus, “[p]ursuant to the statute, a defendant must be granted an automatic substitution of

          judge if the defendant meets the following requirements: (1) the motion is made within 10

          days after defendant’s case is placed on the judge’s trial call; (2) the motion names only one

          judge unless the defendant is charged with a Class X felony, in which case he may name two

          judges; (3) the motion must be in writing; and (4) the motion must allege the trial judge is so

          prejudiced against the defendant that the defendant cannot receive a fair trial. In addition [the

          supreme] court has held that the motion must be made before the trial judge makes a

          substantive ruling in the case.” People v. McDuffee, 187 Ill. 2d 481, 487-88 (1999). “If the

          motion is made within 10 days after the cause has been placed on the judge’s call, the named

          judge cannot proceed further and must transfer the case.” SKS & Associates, 2012 IL App

          (1st) 103504, ¶ 21. “The motion for substitution of judge may be made at any other time, but

          in those instances the movant has the burden of showing prejudice on the part of the judge.”

          SKS & Associates, 2012 IL App (1st) 103504, ¶ 21. “Because the right to a fair and impartial

          trial judge is fundamental, section 114-5(a) is to be construed liberally to promote rather than

          to defeat substitution” (People v. Ryan, 264 Ill. App. 3d 1, 3 (1994) (citing People v. Walker,

          119 Ill. 2d 465, 480-81 (1988))) and “ ‘reversible error occurs where the statute is not so

          construed’ ” (McDuffee, 187 Ill. 2d at 488 (quoting Walker, 119 Ill. 2d at 481)). “A liberal

          construction of the statute, however, does not mean that a motion will be considered to have


                                                       21
       No. 1-15-2454


          been timely filed in all cases.” People v. Evans, 209 Ill. 2d 194, 215 (2004). Whether a

          motion for substitution of judge complies with section 114-5’s requirements is a question of

          law that we review de novo. People v. Tate, 2016 IL App (1st) 140598, ¶ 13. De novo

          consideration means we perform the same analysis that a trial judge would perform. Khan v.

          BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 54         In the case at bar, the petition for indirect criminal contempt was filed against Sylla on

          August 21, 2013, after the trial court instructed WMJ to draft the petition during a hearing on

          pending sanctions motions the same day. Our supreme court has instructed that a motion for

          substitution is timely filed “if it is brought within 10 days of the date the defendant could be

          ‘charged with knowledge’ that the judge at issue had been assigned to his case.” McDuffee,

          187 Ill. 2d at 490. Here, Sylla could be charged with knowledge that the trial judge at issue

          had been assigned to his case as of the date the petition was filed on August 21. While Sylla

          argues on appeal that he could not be charged with such knowledge until September 10,

          2013, because there was no interpreter present at the August 21 court hearing during which

          the court instructed that the contempt petition be filed and because “[t]he trial court was

          unclear about whether the matter was indirect or constructive direct criminal contempt,” we

          do not find these arguments persuasive. Sylla was represented by counsel at the hearing, and

          counsel’s knowledge of the trial judge’s involvement in the case can be imputed to Sylla.

          People v. Wadley, 169 Ill. App. 3d 1036, 1042 (1988); see also Tate, 2016 IL App (1st)

          140598, ¶ 16 (finding that the record indicated that the assistant public defender could not be

          charged with knowledge of the judge’s assignment to the courtroom, so such knowledge

          could not be imputed to the defendant). Furthermore, while the trial court made reference to

          constructive direct criminal contempt, it noted a number of times that the petition to be


                                                      22
       No. 1-15-2454


          drafted was an indirect criminal contempt petition, and the petition actually drafted and filed

          on August 21 was clearly labeled as an indirect criminal contempt petition. Accordingly, the

          10-day time period began to run on August 21, 2013.

¶ 55          On September 3, 2013, Sylla, through civil counsel, filed a motion for substitution of

          judge as of right “pursuant to 735 ILCS 5/2-1001.” 5 The motion did not include an allegation

          of prejudice. Two days later, on September 5, 2013, Sylla, through new counsel, a criminal

          lawyer, filed a “supplemental motion for substitution of judge,” which cited section 114-5(a)

          of the Code and included an allegation of prejudice. On September 6, 2013, WMJ, the special

          prosecutor at the time, filed an objection to Sylla’s September 3 motion, claiming that it did

          not satisfy the requirements of section 114-5(a). The objection did not discuss Sylla’s

          September 5 “supplemental motion,” but at the hearing on Sylla’s motion for substitution,

          WMJ argued that the supplemental motion could not cure the defects of the original motion

          and was filed beyond the 10-day time limit such that it could not be considered a timely-filed

          motion itself. On September 10, 2013, the trial court denied respondent’s motion as untimely.

          We thus must consider whether Sylla’s September 5 “supplemental motion” cured any defect

          in his timely-filed September 3 motion such that the motion for substitution of judge should

          have been granted.

¶ 56          The situation present in the instant case—where the original motion is timely filed but the

          amendment or correction is filed after the 10-day period has elapsed—has rarely been

          considered by our courts. The only case that we have discovered that deals directly with this

          factual scenario is the Fourth District case of People v. Burns, 188 Ill. App. 3d 716 (1989). In



              5
                 The tenth day after August 21, 2013, was August 31, a Saturday. The Monday following August
       31, September 2, 2013, was Labor Day, a court holiday. Accordingly, the September 3, 2013, motion was
       timely filed. See 5 ILCS 70/1.11 (West 2012).
                                                        23
       No. 1-15-2454


          Burns, the defendant filed a timely motion for substitution of judge pursuant to section 114-

          5(a), but did not include an allegation of prejudice. Burns, 188 Ill. App. 3d at 719-20. Nine

          days later, the defendant filed an amended motion for substitution of judge, which added a

          paragraph alleging prejudice. Burns, 188 Ill. App. 3d at 720. The trial judge denied the

          amended motion, finding that the allegations of prejudice must be made within the statutory

          10-day period. Burns, 188 Ill. App. 3d at 720. On appeal, the Fourth District affirmed,

          finding “[t]hough it is well established substitution of judge provisions are to be liberally

          construed, the statute cannot be construed so as to contravene its express provisions.

          [Citation.] To be entitled to relief, the defendant must comply with the express requirements

          of the statute. [Citation.] Defendant’s failure to comply with the statute bars the automatic

          substitution.” Burns, 188 Ill. App. 3d at 721.

¶ 57         In the case at bar, the trial court below and both WMJ, the initial special prosecutor, and

          Ekl, the current special prosecutor, relied on the holding in Burns to find that Sylla’s

          supplement to his motion for substitution could not cure its defects. However, we cannot find

          that the Burns court’s strict interpretation of the statute comports with the liberal construction

          we are instructed to apply to motions for substitution of judge. See Walker, 119 Ill. 2d at 480-

          81. We note that the Burns court cited to People v. Howell, 16 Ill. App. 3d 989 (1974), aff’d,

          60 Ill. 2d 117 (1975), a case in which the Fifth District affirmed the trial court’s denial of a

          defendant’s motion for substitution of judge. In that case, the appellate court noted that

          “[d]efendant’s motion was not in writing and not made within ten days after the case had

          been placed on the trial call of [the trial judge], but these technical defects may be

          overlooked under the liberal construction of the statute called for by People v. Kostos, [21 Ill.

          2d 451, 454 (1961)].” Howell, 16 Ill. App. 3d at 993. However, the motion was nevertheless


                                                       24
       No. 1-15-2454


           properly denied because the motion had not been made until after the judge had ruled on

           substantive issues in the case. Howell, 16 Ill. App. 3d at 993. The Burns case found that the

           Howell court’s statement about the effect of the motion’s technical deficiencies “was dicta

           and we decline to adopt that view.” Burns, 188 Ill. App. 3d at 721.

¶ 58           The holding of the Burns court has been cited by a handful of courts on this issue, but

           only once 6 in a case involving a defendant attempting to correct a defect in the motion, as

           was present in both Burns and in the case at bar. In People v. Langford, 246 Ill. App. 3d 460

           (1993), a case cited by Sylla, the Fifth District was presented with a case in which the

           defendant filed a timely motion for substitution of judge pursuant to section 114-5(a), but

           named two judges in the motion instead of one. Langford, 246 Ill. App. 3d at 461. At the

           hearing on the motion, the motion was treated as a motion for substitution of judge for cause

           under section 114-5(d) because it named more than one judge, despite the defendant’s

           statements that he intended it to be a motion for automatic substitution under section 114-

           5(a), and the motion was denied for failure to attach an affidavit as required under section

           115-4(d). Langford, 246 Ill. App. 3d at 462-63. Over the next several court dates, the

           defendant continued to argue that his motion should have been treated as a motion for

           automatic substitution of judge under section 114-5(a), and the judge ultimately agreed to

           consider the motion as one for automatic substitution, but then denied the motion because it

           named two judges rather than one. Langford, 246 Ill. App. 3d at 464. The defendant argued

           that “the defect of naming the second judge should be considered a technical defect,” but the

               6
                 We note that the Third District considered a case in which the State failed to allege prejudice in
       its motion for substitution and later amended the motion to include such an allegation. People v. Jackson,
       2015 IL App (3d) 140300, ¶ 35. However, in that case, the State “concede[d] that [the amended motion]
       was untimely, as it was filed more than 10 days after the cause had been placed on [the judge’s] trial call.”
       Jackson, 2015 IL App (3d) 140300, ¶ 36. Thus, the court did not discuss the issue further. We also note
       that Jackson contained a special concurrence criticizing the Burns court’s analysis as “fatally flawed.”
       Jackson, 2015 IL App (3d) 140300, ¶ 64 (Holdridge, J., specially concurring).
                                                            25
       No. 1-15-2454


          judge found that it was not merely a technical defect and warranted the denial of the motion

          for substitution. Langford, 246 Ill. App. 3d at 464.

¶ 59         On appeal, the Fifth District found that “[o]ur review of the applicable case law brings us

          to the conclusion that an ambiguous motion for substitution should not be summarily denied

          without allowing defendant to clarify his mistake, if he requests such an opportunity.”

          Langford, 246 Ill. App. 3d at 465. The court noted that the motion filed by the defendant

          contained surplusage that rendered the motion ambiguous because it did not state which

          subsection of section 114-5 was applicable, named a second judge that had not yet been

          assigned to the case, did not allege facts necessary to support a finding of actual prejudice,

          and did not include an affidavit as required under section 114-5(d). Langford, 246 Ill. App.

          3d at 466. The court did not agree with the way the motion had been treated by either of the

          trial judges below, noting that “we do not agree with either analysis but believe that the real

          issue is whether a defendant can be prohibited from amending a defective and ambiguous

          motion. Under the rule of liberal construction, and under the facts of this case, we do not

          believe that the trial court was authorized to deny the motion after defendant had made it

          clear that the motion was intended to be filed under section 114-5(a) and that the motion was

          not intended to be for cause.” Langford, 246 Ill. App. 3d at 466.

¶ 60         The Langford court noted that “defects in a motion for substitution are often held to be

          ‘technical defects’ not warranting denial of the motion under the liberal construction rule set

          forth by the Illinois Supreme Court in cases up through People v. Walker.” Langford, 246 Ill.

          App. 3d at 466. The court recognized that there were cases upholding the denial of motions

          for substitution on the basis that the statute had not been substantially complied with, but

          noted that “none of the cases cited by the State, and no case we have found, deals precisely


                                                       26
       No. 1-15-2454


          with the factual situation presented by this case, that the motion mistakenly named two

          judges but defendant acknowledged and sought to amend the mistake at his first

          opportunity.” Langford, 246 Ill. App. 3d at 467. Accordingly, the court found that “[w]here

          the facts of the cases show that the defendant has made a mistake in filing the motion and

          then requested to correct the mistake, *** the rule favors amendments. Denying a motion for

          automatic substitution of judge for failure to comply with a strict construction of the statute

          without a chance to correct the mistake defeats rather than promotes substitution of judges,

          an outcome which is contrary to the purpose of the law.” Langford, 246 Ill. App. 3d at 467.

¶ 61         The Langford court acknowledged the Burns decision, but found the case distinguishable

          on its facts. Langford, 246 Ill. App. 3d at 467. The court additionally noted that “[t]o the

          extent, however, that the ruling of Burns conflicts with the ruling in this case, we decline to

          follow it.” Langford, 246 Ill. App. 3d at 467.

¶ 62         In the case at bar, we find the Langford court’s analysis more instructive to the situation

          present here than the Burns court’s analysis and find that the Langford court’s reasoning

          comports with the liberal construction of the statute that our supreme court instructs us to

          apply. As noted, in the case at bar, on September 3, 2013, Sylla, through his civil counsel,

          filed a motion for substitution of judge as of right. At the time of filing of the motion, Sylla

          was represented by civil counsel, who had been unaware of the fact that the trial court was

          starting the process to have Sylla prosecuted for indirect criminal contempt and apparently

          did not have criminal experience. The motion claimed that it was filed “pursuant to 735 ILCS

          5/2-1001,” which is the civil substitution of judge statute, and did not include an allegation of

          prejudice. However, the motion did expressly state that “[t]he tenth day following the filing

          of the [petition for indirect criminal contempt] was Saturday, August 31, 2013,” thereby


                                                       27
       No. 1-15-2454


          referencing the 10-day time limit for substitution of judge in criminal proceedings, which is

          not a requirement included in the civil statute. Thus, from the language of the motion itself, it

          was unclear whether Sylla was attempting to file a motion for substitution of judge under the

          civil or criminal statute, rendering the motion ambiguous. See Black’s Law Dictionary 88

          (8th ed. 2004) (defining “ambiguity” as “An uncertainty of meaning or intention, as in a

          contractual term or statutory provision”). Two days later, on September 5, 2013, Sylla,

          through new counsel, a criminal lawyer, filed a “supplemental motion for substitution of

          judge,” which cited section 114-5(a) of the Code and included an allegation of prejudice,

          clarifying any ambiguity over Sylla’s intention. This supplement was filed before the hearing

          on the motion for substitution and before the trial judge made any substantive rulings. Thus,

          in the case at bar, Sylla timely filed an ambiguous motion for substitution, immediately

          sought to supplement that motion to clarify the ambiguity, and did so before the original

          motion had been ruled on or any further proceedings in the case had occurred. We cannot

          find that a denial of the motion for substitution based solely on the fact that the supplement

          was filed two days after the deadline is construing the statutory requirements in such a way

          so as “ ‘to promote rather than defeat’ substitution” (Walker, 119 Ill. 2d at 480-81).

¶ 63         In reaching this result, we note that compliance with the statutory requirements is

          certainly required, and there is no dispute that Sylla’s original motion did not comply with

          the requirement that it contain an allegation of prejudice. However, where such an error is

          immediately sought to be corrected, as occurred in the case at bar, we cannot find that the

          initial omission of the allegation renders the motion fatally defective, despite the fact that the

          correction happens to occur after the 10-day deadline has passed. There is nothing in the

          language of section 114-5(a) that prohibits amendments to motions for substitution after the


                                                       28
       No. 1-15-2454


          10-day time period has passed and, as noted, the Burns court’s suggestion that section 114-

          5(a) contains such a prohibition conflicts with the liberal interpretation we are required to

          give section 114-5(a). See Walker, 119 Ill. 2d at 480-81. We note that the time period

          between the filing of a motion under section 114-5(a) and the trial court’s order transferring

          the case is necessarily brief, given that “[u]pon the filing of such a motion the court shall

          proceed no further in the cause but shall transfer it to another judge not named in the

          motion.” 725 ILCS 5/114-5(a) (West 2012). So long as the motion was originally timely filed

          and the contents of that motion—amended or otherwise—are sufficient by the time the trial

          court is asked to rule on it, we see no reason why such a motion should be denied.

¶ 64         This is especially true given the unique facts of this case, where the trial court admittedly

          surprised Sylla with criminal contempt proceedings when he arrived for a hearing on a

          motion for sanctions, ordering the contempt petition to be filed and a bond hearing to be held

          the same day. Sylla at the time was represented by civil counsel on the sanctions matter, who

          was unexpectedly presented with the trial court’s sua sponte shifting the fundamental nature

          of the proceedings before it from a civil to a criminal matter. Civil counsel nevertheless

          agreed to represent Sylla at the bond hearing because the alternative was Sylla remaining in

          jail until he retained criminal counsel. Sylla’s civil counsel filed the original, timely-filed

          motion for substitution, and the next day, criminal counsel filed his appearance. The day after

          that, criminal counsel supplemented the motion for substitution to include the required

          elements under the statute. In light of the circumstances of this case, the motion for

          substitution should have been granted and the trial court erred in denying it. “[W]hen a

          motion for substitution of judge is improperly denied, all subsequent action by the trial judge,




                                                      29
       No. 1-15-2454


          beyond transfer of the matter, is void.” Tate, 2016 IL App (1st) 140598, ¶ 20. Accordingly,

          this case must be remanded to the trial court for a new trial before a different judge.

¶ 65         We note that, “[w]hen an appellate court reverses a criminal conviction and remands the

          case for a new trial without deciding [the] defendant’s contention that the evidence at the first

          trial was insufficient, *** the court risks subjecting the defendant to double jeopardy.”

          People v. Taylor, 76 Ill. 2d 289, 309 (1979). Double jeopardy concerns apply to criminal

          contempt proceedings. See, e.g., Winning Moves, Inc. v. Hi! Baby, Inc., 238 Ill. App. 3d 834,

          841 (1992) (reviewing sufficiency of the evidence after reversal of an indirect criminal

          contempt proceeding); In re Marriage of Alltop, 203 Ill. App. 3d 606, 616-17 (1990) (same);

          Falcon, Ltd. v. Corr’s Natural Beverages, Inc., 173 Ill. App. 3d 291, 298 (1988) (same).

          However, it is not clear whether they apply to improper denials of motions for substitution of

          judge, as we have discovered limited case law discussing double jeopardy concerns in that

          situation. See People v. Pace, 225 Ill. App. 3d 415, 433 (1992) (after determining that the

          defendant’s motion for substitution of judge was improperly denied, considering the

          sufficiency of the evidence in order to determine whether there was a risk of double jeopardy

          on retrial). But see People v. Bosley, 233 Ill. App. 3d 132, 138 (1992) (in considering a case

          in which the trial court exceeded the appellate court’s mandate, finding that “[a]s the circuit

          court’s order was void, the order could not violate the constitutional guarantee against double

          jeopardy”). Out of an abundance of caution, and because sufficiency of the evidence was an

          issue raised by Sylla on appeal, we consider the sufficiency of the evidence presented at trial

          in order to determine whether any double jeopardy concerns would arise on remand.

¶ 66         “The double jeopardy clause of the fifth amendment to the United States Constitution,

          made applicable to the states through the fourteenth amendment, provides that no person


                                                       30
       No. 1-15-2454


          shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ ” People v.

          Bellmyer, 199 Ill. 2d 529, 536-37 (2002) (quoting U.S. Const., amends. V, XIV). “The same

          protection is afforded by the Illinois Constitution [citation] and by statute [citation].”

          Bellmyer, 199 Ill. 2d at 537. “The cornerstone of the double jeopardy clause is ‘that the State

          with all its resources and power should not be allowed to make repeated attempts to convict

          an individual for an alleged offense, thereby subjecting him to embarrassment, expense and

          ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as

          enhancing the possibility that even though innocent he may be found guilty.’ ” People v.

          Williams, 188 Ill. 2d 293, 307 (1999) (quoting Green v. United States, 355 U.S. 184, 187-88

          (1957)).

¶ 67         “The double jeopardy clause prohibits retrial for the purpose of affording the prosecution

          another opportunity to supply evidence which it failed to present in the first proceeding.”

          People v. Lopez, 229 Ill. 2d 322, 367 (2008) (citing Burks v. United States, 437 U.S. 1, 11

          (1978)). “It does not, however, preclude retrial where a conviction has been set aside because

          of an error in the proceedings leading to the conviction.” Lopez, 229 Ill. 2d at 367 (citing

          People v. Mink, 141 Ill. 2d 163, 173-74 (1990)). In the case at bar, Sylla’s conviction must be

          set aside because of an error in the proceedings leading to the conviction, namely, the

          improper denial of his motion to substitute judge. “Accordingly, we consider whether the

          evidence presented at trial *** was sufficient to convict. [Citation.] The relevant question is

          whether, after viewing the evidence in the light most favorable to the [prosecution], any

          rational trier of fact could have found the essential elements of the crime beyond a reasonable

          doubt. [Citation.]” Lopez, 229 Ill. 2d at 367. The determination that evidence is sufficient to

          support a conviction for purposes of a double jeopardy analysis does not in any way imply


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          that the reviewing court has made a finding as to the defendant’s guilt that will be binding in

          any subsequent proceedings. Taylor, 76 Ill. 2d at 310 (“Our holding in no way implies, of

          course, *** that we have made a finding as to defendant’s guilt that would be binding on the

          court on retrial.); Pace, 225 Ill. App. 3d at 433 (“We note that the evidence at trial was

          sufficient for the trier of fact to conclude that defendant was guilty beyond a reasonable

          doubt. This does not mean we are making a finding as to defendant’s guilt or innocence

          which would be binding on retrial, but rather our consideration of the sufficiency of the

          evidence admitted at trial will remove the risk of subjecting defendant to double jeopardy.”).

¶ 68          In the case at bar, the evidence presented at trial was sufficient for a rational trier of fact

          to have found the essential elements of the crime beyond a reasonable doubt. Keita testified

          that he had met Sylla twice and that Sissoko had informed Sylla that Keita was her husband,

          testimony which a trier of fact could choose to believe, despite the fact that Konde, Sylla’s

          wife, testified that Keita had never visited her home or shop. Furthermore, Sylla testified in

          his evidence deposition that he reviewed the answers to interrogatories at the time that he

          signed them and further testified that he did not conduct any investigation before stating that

          Sissoko was never married, relying on the theory that someone would have informed him had

          she ever married. Accordingly, there was sufficient evidence for a rational trier of fact to

          have found the essential elements of the contempt charges beyond a reasonable doubt and,

          consequently, we reverse and remand for a new trial and proceedings consistent with this

          opinion. Since we are remanding for a new trial, we have no need to consider Sylla’s other

          allegations of error.




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¶ 69                                          CONCLUSION

¶ 70         For the reasons set forth above, we find that the trial court erred in denying Sylla’s

          motion for substitution of judge pursuant to section 114-5(a) of the Code and, accordingly,

          reverse and remand the cause for a new trial before a different trial judge.

¶ 71         Reversed and remanded with instructions that the jury verdict finding Sylla guilty of

          indirect criminal contempt and the trial court’s entry of judgment on the verdict be vacated

          and that this case be transferred to the presiding judge of the criminal division of the circuit

          court of Cook County to be heard by a different judge.




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