People Ex Rel. Sears v. Romiti

MR. JUSTICE GOLDENHERSH, dissenting:

I dissent from the majority opinion. Clearly, the motion for leave to file the petition was improvidently allowed and the petition should be denied. I am aware of our prior decisions holding that writs of prohibition and mandamus may be awarded even though all of the normal criteria are not present but they do not support the issuance of the writs in the absence of all of the normal criteria. Historically, these writs are sparingly used and should not be invoked as a piecemeal appeal from an interlocutory nonappealable order which the circuit court admittedly has jurisdiction to enter. I do not in this dissent express any opinion with respect to the validity of the indictment. I simply point out that the decision of the majority has foreclosed, without valid reason, an inquiry germane to the indictment’s validity and clearly authorized by statute and our prior decisions.

The majority opinion, it should further be pointed out, is, if not unique, somewhat unusual, in that it rejects the contentions of all the parties and promulgates a rule which, renders immune to judicial scrutiny the conduct of a State’s Attorney before a grand jury no matter how violative of due process or fundamental fairness. Not even the Special State’s Attorney contends for this result. His position was declared earlier in People v. Sears, 49 Ill. 2d 14 , where his brief stated: “Relator Sears does not contend that his conduct before that Grand Jury is above judicial scrutiny. It should not be. (Gitchell v. People, 146 Ill. 175, 187 .) But that scrutiny should be according to law, invoked by persons after indictment, as every case in the book demonstrates.” And here he states: “The question here is what constitutes a sufficient showing to warrant the Court’s order for a general hearing as to the conduct of the Special State’s Attorney, the effect of which is to try the prosecutor and the grand jurors before any trial of the defendants on the indictment duly returned. Relator Sears has never contended that the conduct of the prosecutor before the grand jury was not subject to judicial scrutiny, but has always claimed that it must be judicial scrutiny according to law. It is therefore highly important at the outset to have clearly in mind the law which permits the type of public trial envisioned by the Court’s order, presently set for November 8, 1971. The leading case is Commonwealth v. Smart, 368 Pa. 630 ; 84 A.2d 782 . The court discussed the conflicting principles of public policy involved in 84 A.2d on p. 785 and then said on p. 786: ‘Even though it might be possible to imagine a situation which presented justification, and even necessity, to investigate the acts and conduct of a prosecuting officer during the course of his attendance upon the Grand Jury, it is certainly true that such an investigation should never, under any circumstances, be instituted except on the basis of credible, detailed, sworn and persuasive averments by witnesses of the irregularities complained of ’ (Emphasis ours.) [i.e. Sears’] ”

The majority in reaching its decision relies upon Gitchell v. People, 146 Ill. 175 , and dismisses as “scattered and sporadic” the decisions which clearly demonstrate the jurisdiction of the circuit court to enter the order and the propriety of its so doing. Gitchell, decided in 1893, involved an attempt to show by affidavits that an indictment had been returned on the vote of an insufficient number of grand jurors. At that time the pertinent statute provided: “No grand juror or officer of the court or other person shall disclose that an indictment for felony is found or about to be found against any person not in custody or under recognizance, except by issuing process for his arrest, until he is arrested; nor shall any grand juror state how any member of the jury voted, or what opinion he expressed on any question before them; and the court in charging said jury, shall impress upon their minds the provisions of this section. A violation of this section shall subject the offender to an attachment as for contempt of court, in which he may be fined not exceeding $500.” Ch. 38 sec. 595, Starr & Curtis’s Annotated Illinois Statutes.

How Gitchell can be relied on by the majority is not apparent. In the motion pending before the trial court the defendants do not seek to inquire as to how any grand juror voted. Further, as stated by the majority, the pertinent statute now contains the following provisions: “Matters occurring before the Grand Jury other than the deliberations and vote of any grand juror may be disclosed when the court, preliminary to or in connection with a judicial proceeding, directs such in the interest of justice.” (Ill.Rev.Stat. 1969, ch. 38, par. 112—6.) I have noted already that the Special State’s Attorney cited Gitchell as authority for the proposition that his conduct before the grand jury was not and should not be above judicial scrutiny.

The majority cites People v. Arnold, 248 Ill. 169 , as authority for “the strictness with which this court has previously enforced the rule against the use of affidavits of Grand Jurors.” Arnold was decided in 1910, 55 years before the relevant amendment to section 112 — 6 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat. 1969, ch. 38, par. 112—6), and rests solely on a citation to Gitchell, a case patently not in point. Also, the opinion in Arnold shows beyond question that the court considered the matters sought to be presented by the affidavits ( 248 Ill. 169, 172 ), and held “there could have been no prejudice to the defendant from anything that occurred before the Grand Jury.”

The majority traces the origin of the 1965 amendment of section 112 — 6 to Rule 6(e) of the Federal Rules of Criminal Procedure. We agree that failure to include in the statute the provision of 6(e) for disclosure upon a showing “that grounds may exist for a motion to dismiss the indictment because of matters occurring before the grand jury” is significant. Under the prior holdings of this court, however, its significance is precisely opposite to that attributed to it by the majority. A basic rule of statutory construction is that the enumeration of certain matters in a statute implies the exclusion of all others, and the corollary rule is that exceptions other than those designated by statute cannot be read into it. (In re Estate of Tilliski, 390 Ill. 273, 283 .) It is apparent, therefore, that the amendment to section 112—6 authorizes disclosure “in the interest of justice” and not as the majority holds — in the interests of justice except under circumstances of which the majority does not approve.

We advert now to the “scattered and sporadic decisions” to which the majority refers. We start with our opinion in People v. Sears, 49 Ill. 2d 14 , wherein we held that section 112—6 provides for disclosure of matters occurring before the grand jury other than its deliberation and vote. In People v. Ianniello, 21 N.Y.2d 418, 424 , 235 N.E.2d 439, 443 (1968), the Court of Appeals of New York said: “Courts have a particular responsibility to prevent unfairness in Grand Jury proceedings for, the Grand Jury is an ‘arm of the court’ [citations].”

We refer further to In re Fried (2d cir.) 161 F.2d 453 and Austin v. United States (4th cir.), 297 F.2d 356 , also cited in our earlier opinion.

In People v. Petruso, 35 Ill.2d 578 , it is recognized by this court that a showing of improper influence, undue prejudice or “other matters which might have caused a true bill to be improperly returned” may result in the quashing of an indictment. Just how this type of impropriety may ever be shown under the majority’s view is not discernible.

In United States v. Remington (2d cir.), 191 F.2d 246 , the court clearly recognized that an indictment should be quashed if undue influence over the grand jury can be shown. Even the treatise cited by the majority (Wright, Federal Practice and Procedure) does not support the conclusion that the court did not have jurisdiction to order the inquiry. It only states that the courts have “ordinarily denied such requests on the ground that the defendant has not made a sufficiently strong showing that such grounds may exist.”

Here the request for the hearing is supported by the affidavits of three grand jurors and the unsworn statement of a fourth. They charge that the Special State’s Attorney frequently went off the record and made derogatory comments with respect to the veracity of some of the witnesses, that one of his assistants referred to a witness as a whore, a slut and a liar, that the Special State’s Attorney expressed the opinion that the evidence of guilt was “overwhelming,” that he “scolded” the grand jury for voting no bills on the preceding day, that when one of the grand jurors stated that an indictment was a very serious thing, the Special State’s Attorney said, “Don’t worry, an indictment is nothing but a piece of paper.” It is also said that he stated that an indictment did not do anybody any harm because if the people named were not guilty they would be found not guilty at trial.

If affidavits charging such serious improprieties do not furnish a sufficient basis for the hearing ordered by the circuit court, then it is difficult to perceive the circumstances under which a hearing would be warranted.

The opinion of the trial court demonstrates the legislative concern and wisdom underlying the amendment to section 112—6, which makes possible under exceptional circumstances a judicial scrutiny of the proceedings before the grand jury, a scrutiny which even the Special State’s Attorney admits is authorized by law. The action taken by the majority today renders meaningless the principles and protections of due process insofar as they apply to proceedings before a grand jury. As I read the majority opinion the action is taken to counteract the allegedly increasing tendency to try some person other than the defendant. This, of course, does not warrant the far-reaching action taken.

I repeat that I make no judgment as to whether the indictment here should be dismissed or as to the veracity of the affiants.

It is a matter of regret that the majority has erroneously taken the position that no accused, however improper may have been the presentation to the grand jury, may seek to show this circumstance. The importance of the question goes far beyond this case.

KLUCZYNSKI and WARD, JJ., join in this dissent.