People ex rel. Sears v. Romiti

• Decision Date: 17 December 1971
• Docket Number: No. 44781,44781
• Citation: 50 Ill.2d 51,277 N.E.2d 705
• Parties: The PEOPLE ex rel. Barnabas F. SEARS, Special State's Attorney, Petitioner, v. Philip ROMITI, Judge, et al., Defendants.
• Court: Illinois Supreme Court

Page 705

277 N.E.2d 705

50 Ill.2d 51

The PEOPLE ex rel. Barnabas F. SEARS, Special State's Attorney, Petitioner, v. Philip ROMITI, Judge, et al., Defendants.

No. 44781.Supreme Court of Illinois.

Dec. 17, 1971.

As Modified on Denial of Rehearing Jan. 14, 1972.

Barney F. Sears, Chicago, for petitioner.

George J. Cotsirilos, Leonard R. Hartenfeld, Camillo Volini, Thomas P. Sullivan, John P. Coghlan, and William J. Martin, Chicago, for defendants.

SCHAEFER, Justice:

This case again presents questions arising in connection with the Special Grand Jury convened by the circuit court of Cook County to investigate violations of law by persons involved in what has come to be known as the Black Panther raid, which took place in December of 1969. The circumstances under which the grand jury was convened and many of the earlier proceedings are described in our opinion in People v. Sears and People ex rel. Sears v. Power which were consolidated by this court and are reported in 49 Ill.2d 14, 273 N.E.2d 380.

The first of those cases was an appeal from two orders holding Barnabas F. Sears, the Special State's Attorney appointed by the circuit court, in contempt of court. The order which held him in contempt for refusing to subpoena witnesses as directed by the trial court was reversed, and the order which held him in contempt for statements made outside the courtroom was reversed and remanded for a hearing. The second case was an original action of Mandamus and prohibition brought by the special State's Attorney against the Honorable Joseph A. Power, presiding judge of the criminal division of the circuit court of Cook County. The conclusions reached by the court in that case appear in the following excerpts from the opinion:

'It is the opinion of the majority of this court that the circuit court, in the exercise of its inherent supervisory powers over the grand jury has jurisdiction to order the transcript of the proceeding before the grand jury submitted to it for examination as provided in the order entered on May 17, 1971, and we so hold. The petition for a writ of Mandamus is, therefore, denied.

'With respect to the circuit court's announcement of his availability to those jurors who wish to communicate with him privately, it is our opinion that such procedure is not desirable and presents the possibility of infringement upon the historic independence of the grand jury and its proceedings. We hold that the court has jurisdiction to meet In camera with the grand jury. Insofar as the petitioners seek a writ of prohibition to preclude In camera communication between the court and individual grand jurors, the writ of prohibition will issue, and in all other respects the petition for writ of prohibition is denied.' 49 Ill.2d 14 at 36, 273 N.E.2d 380 at 392.

Our opinion was handed down on June 23, 1971. On the following day the grand jury met and voted not to rescind an indictment which it had previously voted on April 21, 1971. On June 25, that indictment, sealed in accordance with the court's order, was returned in the circuit court. On August 24, 1971, after another original action (No. 44586) had been filed in this court by the special prosecutor against the presiding judge, to compel the opening of the indictment, it was opened. The indictment charged Edward V. Hanrahan, State's Attorney of Cook County, Richard Jalovec, an assistant State's Attorney, and 12 police officers with conspiracy to obstruct justice.

By oral statements on August 31, 1971, after the special grand jury had been discharged, the presiding judge gave the defendants permission to interview members of the special grand jury except concerning deliberations and the vote of any juror. The presiding judge then assigned the case to Judge Philip Romiti.

Pursuant to the authorization of the presiding judge, with which Judge Romiti declined to interfere, the attorneys for the defendants obtained an unsworn statement from one grand juror and a transcript in question and answer form from another, who swore to the truth of his answers. Two other grand jurors signed affidavits stating that if they were asked the same questions their answers would be the same. Motions to dismiss the indictments were filed, to which the statement and affidavits were attached. The Special State's Attorney and his assistants filed counter-affidavits, and on October 22, 1971, Judge Romiti ordered that a hearing be held to determine the truth of the matters charged in the statement and affidavits, and delivered an opinion explaining the reasons for his ruling. This original action, seeking a writ of prohibition to bar the hearing and a writ of Mandamus to compel the vacation of the order setting the matter for hearing, was then filed by the Special State's Attorney.

At the outset we encounter the contentions of the defendants that this case is not an appropriate one for the exercise of original jurisdiction and that in any event mandamus and prohibition do not lie in the circumstances here presented. Running through both contentions are the propositions, first, that the extraordinary writs raise only questions concerning the jurisdiction of the trial court, and second, that these writs should not be permitted to be used as substitutes for appeals. As general statements, both propositions are sound. But as pointed out in our earlier opinion in this matter, 'This court, however, charged with the supervisory and administrative powers and duties provided in the constitution, may, when appropriate, award these writs even though all of the normal criteria are not present. People ex rel. General Motors v. Bua, 37 Ill.2d 180, 192, 226 N.E.2d 6; People ex rel. Continental Air Transport Co., Inc. v. Strouse, 41 Ill.2d 567, 570, 244 N.E.2d 171.' People v. Sears (1971), 49 Ill.2d 14, 33, 273 N.E.2d 380, 390; see also, People ex rel. Terry v. Fisher, 12 Ill.2d 231, 145 N.E.2d 588.

The primary question raised in this case is whether a trial court may conduct a hearing to receive the testimony of grand jurors concerning charges that relate to the demeanor of a prosecutor while examining witnesses before the grand jury and to the quality of his argument or advice to them. Charges of this type have been leveled against the prosecutor by the indicted defendants in this case in connection with their motions to quash the indictment, and in our opinion the importance of the question justifies the exercise of original jurisdiction of this Court.

There has been an increasing tendency in criminal cases to try some person other than the defendant, and some issue other than his guilt. What was stated by Mr. Justice Black in Costello v. United States, in rejecting the contention that an indictment is open to challenge because only hearsay evidence was presented to the grand jury, is pertinent here. 'If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on a kind of preliminary trial to determine the competency and adequacy of the evidence before the grand jury.' 350 U.S. 359, 363, 76 S.Ct. 406, 408, 100 L.Ed. 397, 402.

It is important, therefore, that we analyze carefully the statute and the judicial decisions that are relied upon to authorize such a proceeding. As the trial judge pointed out in his opinion, prior to the 1965 amendment of section 112--6(b) of the Code of Criminal Procedure (Ill.Rev.Stat.1969, ch. 38, par. 112--6), 'previously existing case law in Illinois exhibited the philosophy that the secrecy of the grand jury could only rarely, if ever, be invaded. The classic statement of this line of holding can be found in Gitchell v. People.' In that case the court stated: 'In furtherance of justice, and upon grounds of public policy, the law requires that the proceedings of grand juries shall be regarded as privileged communications, and that the secrets of the grand jury room shall not be revealed. * * * The hardship which an accused party may suffer because he is not allowed to go behind an indictment to see how it has been found will be small, compared with the incalculable mischief which will result to the public at large from a disclosure of what the law deposits in the breast of a grand juror as an inviolable secret. An innocent person will not be hurt by being forbidden to thus go behind the indictment, 'for he can always vindicate himself in a trial upon the merits. " Gitchell v. People (1893), 146 Ill. 175, 183, 185, 33 N.E. 757, 759.

Concerning section 112--6(b), the trial court stated:

'Prior to the 1965 amendment, Section 112--6(b) limited disclosure to transcripts of the testimony of the witnesses to be used by the state at trial. In 1965, the Legislature broadened disclosure to cover all situations. By broadening the scope and availability of disclosure, the amendment tacitly recognized the policy, the current trend and modern view, that once an indictment is returned, the rationale underlying and the compelling reasons calling for the maintenance of secrecy are at an end.

'The Committee Comments relating to this section of the Criminal Code are of great value for the reason that the revised provisions of Section 112--6, relating to this topic, have not been passed upon by the Illinois Courts of Review, and no case, to this court's knowledge, exists in Illinois interpreting this provision. The Committee Comments expressly state and refer to a related rule contained within the Federal Rules of Criminal Procedure, to-wit, Rule 6(e). The similarity between the Federal rule and the Illinois provision is strong and it seems obvious that Illinois has been brought into line with modern Federal procedures in this regard.'

As the trial court indicated, the case for allowing the kind of preliminary inquiry that is here involved rests basically on ...