Hughes v. Kiley

• Decision Date: 27 June 1977
• Docket Number: 49302,Nos. 49180,s. 49180
• Citation: 10 Ill.Dec. 247,367 N.E.2d 700,67 Ill.2d 261
• Parties: , 10 Ill.Dec. 247 James HUGHES et al., Petitioners, v. Roger J. KILEY, Jr., Judge, Respondent. Franklin PARISH, Petitioner, v. Richard ELROD, Sheriff, Respondent.
• Court: Illinois Supreme Court

Page 700

367 N.E.2d 700

67 Ill.2d 261, 10 Ill.Dec. 247

James HUGHES et al., Petitioners, v. Roger J. KILEY, Jr., Judge, Respondent.

Franklin PARISH, Petitioner, v. Richard ELROD, Sheriff, Respondent.

Nos. 49180, 49302.

Supreme Court of Illinois.

June 27, 1977.

Rehearing Denied Oct. 3, 1977.

James J. Doherty, Public Defender, Chicago (Jack L. Uretsky and John Thomas Moran, Asst. Public Defenders, Chicago, of counsel), for Petitioners James Hughes and Franklin Parish.

Michael P. Toomin, Chicago, for Petitioner Franklin Parish.

William J. Scott, Atty. Gen., Springfield, and Bernard Carey, State's Atty, Chicago (Jayne A. Carr, Asst. Atty. Gen., and Laurence J. Bolon and Mary Ellen Dienes, Asst. State's Attys., of counsel), for the People.

CLARK, Justice:

A joint preliminary hearing was had before the Honorable Maurice D. Pompey, judge of the circuit court of Cook County, on criminal complaints against defendants-petitioners James Hughes and Darnell Nash charging each with the offense of murder. The State's evidence consisted of the testimony of a homicide investigator of the Chicago Police Department concerning conversations he had participated in with several persons including defendants and the admission as exhibits of written statements allegedly taken from the defendants. Defendants' counsel cross-examined the investigator and refrained from presenting any evidence on defendants' behalf. Judge Pompey entered an order on July 1, 1976, finding probable cause that defendants had committed the offenses of involuntary manslaughter and binding the defendants over to the grand jury on those charges. He stated that he did not believe the State had shown probable cause that defendants had committed the offenses of murder. That same day, an assistant State's Attorney sought and received from the grand jury true bills of indictment for murder against both defendants after questioning the investigator before the grand jury. Defendants moved to quash these indictments on several grounds, including alleged violations of defendants' due process rights by the conduct of the assistant State's Attorney before the grand jury. The assigned trial judge, the Honorable Roger J. Kiley, Jr., examined the transcripts of the preliminary hearings and the grand jury proceedings, heard arguments by counsel for the State and defendants and denied the motions to quash because the defendants had not clearly and positively shown gross and prejudicial irregularity on the record which could have influenced the grand jury in returning the indictments. Specifically, Judge Kiley stated he did not believe the assistant State's Attorney's remarks to the grand jury constituted sufficient grounds to support granting the motions. Subsequent to these denials, defendants petitioned this court for writs of prohibition against further proceedings in either case. We refrain from detailing or commenting upon the prosecutor's remarks before the grand jury, since the present need for such attention is precluded by our disposition. An examination of this sort would be relevant in the event defendants were convicted on these charges and appealed contending that Judge Kiley abused his discretion in denying the motions.

Defendant-petitioner Franklin Parish was charged in a separate incident with the offense of murder by criminal complaint, and preliminary hearing was had before Judge Pompey. The State presented three witnesses, who were cross-examined by the defense, and certain physical evidence. On the basis of this evidence, Judge Pompey entered an order on June 24, 1976, finding no probable cause that defendant had committed the offense of murder and discharged him for that reason. An assistant State's Attorney presented the case to the grand jury that same day seeking a true bill of indictment for murder. Such a true bill was returned by the grand jury, and defendant moved to quash the indictment in the trial court. We are informed by defendant-petitioner's brief in this court that the Honorable Albert Porter denied this motion on October 6, 1976, but we have not been presented with any transcript of the proceedings before Judge Porter or any other indication of the reasoning behind his decision other than the motion to quash itself, which, in part, alleges a due process violation based upon prosecutorial misconduct before the grand jury. Defendant Parish filed a petition for writ of habeas corpus with this court seeking his discharge and release. We also refrain from detailing or commenting upon the prosecutor's conduct before the grand jury in this case due to our disposition of the case and note that such examination might be relevant on a direct review of a potential abuse of discretion in the denial of the motion to quash.

All three petitioners contend they are entitled to the extraordinary relief requested for two reasons. First, they assert the prosecutor in each case abused the grand jury process by presenting the same or less evidence as at the preliminary hearings and by misrepresenting to the grand juries the applicable law and the facts adduced at the hearings. These actions, according to petitioners, violated their rights to due process of law and created frauds upon the courts which convened the grand juries. Second, they argue that no other remedy exists which does not require extreme hardship to be suffered by the defendants prior to its availability.

This court is authorized, by the 1970 Illinois Constitution, to exercise original...