Special February 1971 Grand Jury v. Conlisk, 73-1207.

• Decision Date: 20 December 1973
• Docket Number: No. 73-1207.,73-1207.
• Citation: 490 F.2d 894
• Parties: In re SPECIAL FEBRUARY 1971 GRAND JURY, Howard Jachimowski, et al., Petitioners-Appellants. v. James B. CONLISK, Jr., Superintendent of Police, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

490 F.2d 894 (1973)

In re SPECIAL FEBRUARY 1971 GRAND JURY, Howard Jachimowski, et al., Petitioners-Appellants. v. James B. CONLISK, Jr., Superintendent of Police, Respondent-Appellee.

No. 73-1207.

United States Court of Appeals, Seventh Circuit.

Argued September 18, 1973.

Decided December 20, 1973.

Anna R. Lavin, George F. Callaghan, Edward J. Calihan, Jr., Martin S. Gerber, Chicago, Ill., for petitioners-appellants.

Richard L. Curry, Corp. Counsel, Daniel Pascale, William R. Quinlan, Asst. Corp. Counsels, James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, Ill., for respondent-appellee.

Before SWYGERT, Chief Judge, CASTLE, Senior Circuit Judge, and SPRECHER, Circuit Judge.

CASTLE, Senior Circuit Judge.

This is an appeal from an order of the district court denying the motion of plaintiffs, five Chicago policemen, to vacate two prior district court orders authorizing the disclosure to the Superintendent of Police of grand jury minutes pertinent to the policemen's appearances before the grand jury and permitting court reporters to testify at a Chicago Police Department inquiry on matters occurring before the grand jury. On appeal, the policemen contend that the orders sought to be vacated constitute a violation of rule 6(e) of the Federal Rules of Criminal Procedure, which provides for the secrecy of grand jury proceedings. Finding no abuse of discretion in the court's granting of the two orders relative to the disclosure, we affirm the order of the court denying the policemen's motion to vacate those orders.

The policemen appeared before a federal grand jury investigating allegations of criminal conspiracy and corruption among members of the Chicago Police Department. Subsequently, the men were summoned to appear before the Police Department's board of inquiry. The men were charged with violating certain departmental rules.¹ The Superintendent of Police and defendant, James B. Conlisk, Jr., thereafter petitioned the court for the orders authorizing disclosure of the grand jury minutes and permitting the court reporters to testify. The court granted the orders, and the Department formally notified the policemen that at their hearing it intended to call the court reporters as witnesses to testify and to produce transcripts of the policemen's testimony before the grand jury. The men then filed a motion to vacate the orders, which the court denied.

From earliest times, grand jury proceedings have been traditionally secret. In re April 1956 Term Grand Jury, 239 F.2d 263, 269 (7th Cir. 1956). The interests on which this tradition rest are numerous: the interest of the government against disclosure of criminal investigation which might forewarn the intended objects of the inquiry or inhibit future witnesses; the interest of a witness against disclosure of others' testimony which he has had no opportunity to cross-examine or rebut, or of his own testimony where he may have been subjected to prosecutorial intimidation without the protestation of counsel; the interest of those unfavorably mentioned in prosecutors' questions or witnesses' answers; and the protection of witnesses and grand jurors against reprisals. In re Biaggi, 478 F.2d 489, 491-492 (2d Cir. 1973) (Friendly, J.); Pittsburgh Plate Glass Co. v. United States, 360 U. S. 395, 405, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (1959). The secrecy of grand jury proceedings is not absolute, however. The Federal Rules of Criminal Procedure provide three exceptions in rule 6(e) to the secrecy requirement. Disclosure of matters occurring before the grand jury "may be made to the attorneys for the government for use in the performance of their duties." The court may grant the request of a defendant for access to grand jury minutes "upon a showing that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury." Finally, matters may be disclosed "when so directed by the court preliminarily to or in connection with a judicial proceeding."

Respecting the first exception, while the rule refers to attorneys for the government, this phrase has been construed to include only attorneys for the United States government and not municipal, county or state attorneys. In re Holovachka, 317 F.2d 834 (7th Cir. 1963), United States v. Downey, 195 F. Supp. 581 (S.D.Ill.1961). The second exception is patently inapposite. We must therefore determine whether the testimony was sought preliminarily to or in connection with a "judicial proceeding." That depends, first, on whether the police board hearings are "preliminary" to judicial review of findings of misconduct, and second, on whether review by the Illinois courts is a "judicial proceeding" within the meaning of the rule.

An elaboration of the Illinois statutory scheme is necessary to a resolution of this question. The Superintendent is empowered to enforce Departmental discipline through the placing of charges against members of the force. When the disciplinary remedy sought is dismissal or suspension for more than thirty days, the policeman is entitled to a hearing before a Departmental board of inquiry. The policeman may appear with counsel of his choice to present witnesses and evidence in his own behalf, and he may cross-examine witnesses giving evidence against him. Ill.Rev. Stat. ch. 24, sec. 10-1-18.1 (1969). The formal or technical rules of evidence do not apply, Id.; however, a record of the hearing is made. If the board orders the penalty sought, the policeman is entitled to judicial review of the decision by the Circuit Court of Cook County, with an appeal as of right to the Appellate Court of Illinois.

This statutory scheme resembles that found in In re Grand Jury Transcripts, 309 F.Supp. 1050 (S.D.Ohio 1970), in which the Columbus, Ohio Chief of Police was granted disclosure of grand jury testimony for use in a proceeding before the city's director of public safety, at which the Chief sought the suspension of several policemen. The City Charter provided "with respect to a judgment of the Director of Public Safety on the suspension of a police officer, for appeal to the City Civil Service Commission and thereafter to the Ohio Court of Common Pleas." Id. at 1052. The court found that the director's acts in inquiring into the charges for which suspension was sought and in rendering judgments were quasi-judicial in nature and therefore within the purview of rule 6(e). Citing Doe v. Rosenberry, 255 F. 2d 118 (2d. Cir. 1958). That case holds that disclosure of grand jury minutes to the New York City Bar's Grievance Committee for investigation as to whether disciplinary proceedings should be instituted before the Appellate Division of the New York Supreme Court was "preliminary to a judicial proceeding." But that determination was not framed simply on the Grievance Committee's quasi-judicial nature, but rather on the fact that judicial action on charges predicated on the Committee's findings necessarily followed the Committee's hearings. Nonetheless, the principle was followed, even if not stated, in In re Grand Jury Transcripts, supra. The court found, "Resort to judicial review is clearly contemplated with respect to the hearings before the Director of Public Safety." 309 F.Supp. at 1052. The court properly ignored the formalistic distinction (in this context) as to which party bears the burden of presenting the quasi-judicial findings of culpability to the court, the board (Doe v. Rosenberry, supra) or the individual after sentence has been imposed but not executed (In re Grand Jury Transcripts, supra), so long as the statute envisioned that the findings are subsequently presented to the court. We similarly decline the...