People v. Kirkley

Mr. JUSTICE BARRY, specially concurring:

I concur in the result reached in this case and also agree with Justice Stengel’s comments in his special concurring opinion that there is a need for something more to be said regarding this case. In addition, the fact that something should have been done by the Illinois General Assembly to afford an appropriate sanction to implement the intent of article I, section 7 of the 1970 Illinois Constitution is obvious.

While I am not convinced that the Illinois constitutional provision for a prompt preliminary hearing impliedly provides an absolute grant of immunity from prosecution as a sanction for its violation, I am convinced that the constitutional provision and the constitutional rights of all those accused of a crime demand our close scrutiny in order to insure that our most fundamental rights as free citizens are not impugned.

In this case, the delays in holding a preliminary hearing were the result of several factors including, most importantly, delays requested by the prosecution and delays actually occasioned by the malfunctions of the court system. We cannot condone such extreme delays by affirming defendants’ convictions because it would only add to the wrong already perpetrated. Every accused, whether incarcerated or not, has a right to a prompt preliminary hearing to determine initially whether there is sufficient evidence to continue with the criminal prosecution against him. If the evidence is insufficient a prompt preliminary hearing resulting in an accused’s discharge will avoid adding further to the State’s expense of continuing with the prosecution, and to an accused’s mental anguish and social stigma which naturally result from being accused of criminal conduct. Most importantly, an accused’s actual freedom is less likely to be taken away even temporarily, if he is innocent, when a prompt preliminary hearing is conducted.

The opinion of the majority in going beyond People v. Howell (1975), 60 Ill. 2d 117 , 324 N.E.2d 403 , of necessity in the instant case creates a sanction sufficient to call the attention of the legislature to the serious problem presented. I therefore concur in the result we reach today in this case wherein the issue is squarely and properly raised for us, unlike the case of Howell.

I disagree with Justice Stengel’s position in his special concurring opinion wherein he recites that the subject matter of this case is again appropriate for consideration by the supreme court. It should be recalled that the supreme court considered this problem and urged a legislative response not only in the Howell case but very explicitly in the 1975, 1976 and 1977 Annual Reports of the Supreme Court to the General Assembly pursuant to article 6, section 17, of the 1970 Illinois Constitution. Apparently in response, the 79th General Assembly in 1976 passed House Bill 3420, which, unfortunately, was vetoed by the governor because of inherent legal and practical deficiencies in the drafted legislation. To illustrate the frequency of the reoccurrence of this issue in the appellate courts of this State the 1976 Annual Report of the Supreme Court to the General Assembly cited the recent case of People v. Kilgore (5th Dist. 1976), 39 Ill. App. 3d 1000 , 350 N.E.2d 810 , in an attempt to urge the General Assembly to enact legislation to solve this problem.

It was also noted in the 1977 Annual Report of the Supreme Court to the General Assembly that in Cook County several efforts have been made to handle this problem through the enactment of Circuit Court Rules which propose the following procedures:

(1) Preliminary hearings in felony cases must be held within 30 days of the date of the arrest of an accused. A preliminary hearing may be continued beyond the 30 day period only upon a showing of exceptional circumstances which warrant delay. (Cook County Circuit Court Rule 14.1, effective March 1, 1977.)

(2) In Chicago, a defendant not released on bond shall be given a preliminary hearing immediately following the approval of the charges against him by the proper authority. A defendant who posts bond on a felony charge shall be given a preliminary hearing not later than 5 days from the date the charges against him are approved by the proper authority. (General Order No. 77-1 (M) of the 1st District of the Municipal Department of the Circuit Court of Cook County, effective March 1, 1977.)

I therefore believe that the judicial sanction we impose today implementing section 7 of article I of the 1970 Illinois Constitution is not only inherently within our power, but mandated by the facts of this case and the failure of the legislature to act in response to an urgent and clearly presented need.

Furthermore, were I writing the majority opinion in this case, I would have suggested another reason to reverse. I believe that, once a defendant is initially charged by information, probable cause cannot later be found by indictment, but must be established through a prompt preliminary hearing. (People v. Hendrix (1973), 54 Ill. 2d 165 , 295 N.E.2d 724 (Justice Ward, dissenting).) Although Hendrix has been cited for the proposition that an indictment, after charges are brought by some other means is sufficient to establish probable cause and vitiates a prompt preliminary hearing (see People v. Moore (5th Dist. 1975), 28 Ill. App. 3d 1085 , 329 N.E.2d 893 , and cases cited therein), the majority in Hendrix did not so conclude.

The only way Hendrix can be interpreted as stating that an indictment following a charge by information vitiates the need for a prompt preliminary hearing is if Justice Goldenhersh’s special concurring is read with, and as a part of, the majority. The Hendrix majority said only that, at the time of that defendant’s trial, he must have been indicted because, even though section 7 of article I of the Illinois Constitution allowed the General Assembly to abolish or limit the use of grand juries, the General Assembly had not done so. However, effective October 1, 1975, the General Assembly did limit the use of grand juries to establish probable cause. Ill. Rev. Stat. 1977, ch. 38, par. Ill—2.

Because the legislature has now limited the use of the grand jury and because of the use of the phrase “initial charge” in section 7, article I of the Illinois Constitution, I believe that, unless the defendant is initially charged by indictment, a prompt hearing to establish probable cause must be had. Therefore, once a defendant is charged by information, a later indictment does not vitiate the need for a prompt preliminary hearing. Accordingly, I would have reversed the judgment of the trial court not only for the long and inexcusable delay but also because no preliminary hearing was had at all.