Jurisdictional Statement — Boclair v. Illinois

Supreme Court, U.S.

FILED

UN 26 1987

JOSEPH F. SPANIOL, UR.

CLERK

In THe

Supreme Court of the Gnited States

Octoser Term, 1986

STANLEY BOCLAIR,

Appellant,

PEOPLE OF THE STATE OF ILLINOIS,

Appellee.

On Appeal From The Supreme Court Of Illinois

JURISDICTIONAL STATEMENT

JEROLD S. Sonovy *

Joun H. Marartas, Jr.

Barry SvuLLIVAN

Jor. T. Perz

JEFFREY T. SHAW

JENNER & BLOCK

One IBM Plaza

Chicago, Illinois 60611

(312) 222-9350

Attorneys for Appellant

® Counsel of Record

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

i

QUESTIONS PRESENTED

1. Whether Illinois Supreme Court Rule 413, Ill. Rev.

Stat. ch. 110A, § 413 (1985), as authoritatively construed

by the Illinois Supreme Court in this case to allow the

State to discover and use as it desires, before trial, hand-

written defense investigative notes taken during inter-

views of State witnesses, is repugnant to the Sixth Amend-

ment right to effective assistance of counsel, because it

improperly interferes with defense trial preparation and

disregards the work product doctrine articulated by this

Court in Hickman v. Taylor, 329 U.S. 495 (1947), and

United States v. Nobles, 422 U.S. 225 (1975), which doc-

trine is constitutionally required in a criminal case.

2. Whether Illinois Supreme Court Rule 413, Il. Rev.

Stat. ch. 110A, § 413 (1985), as authoritatively construed

by the Illinois Supreme Court in this case, is repugnant

to the Fifth and Fourteenth Amendments because it (1)

grants to the State discovery rights that are broader than

those which are afforded the defendant, (2) impairs the

ability of a criminal defendant to investigate the facts and

present a defense at trial, and (8) requires the defendant

to assist the State in the presentation of its case against

him.

li

PARTIES TO THE PROCEEDING

Joel T. Pelz, one of the counsel for defendant at trial,

is the real appellant in this case, which involves the pro-

priety of a contempt citation imposed upon Mr. Pelz, who,

in his role as defense counsel for Mr. Boclair, challenged

the constitutional and statutory validity of the trial court’s

order requiring pretrial production of defense investigative

materials.

ili

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................

PARTIES TO THE PROCEEDING ..........

TABLE OF AUTHORITIES .................

cosa Uisasccceccccsescoces

CSE bibs dab bectlesecseeessecece

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................

STATEMENT OF THE CASE ...............

i. The Trial Court Proceedings .........

2. The illinois Appellate Court Proceedings .

3. The Illinois Supreme Ccurt Proceedings ..

THE QUESTIONS ARE SUBSTANTIAL ....

I.

THIS CASE INVOLVES SUBSTANTIAL QUES-

TIONS UNDER ASSISTANCE OF COUNSEL

CLAUSE OF THE SIXTH AMENDMENT ..

1. The Illincis Supreme Court Decision Con-

flicts With Well-Established Sixth Amend-

ee ree eee

2. The Illinois Supreme Court Decision Con-

flicts With This Court’s Established Work

Product Doctrine, Which, In Criminal

Cases, Is Informed And Required By The

Constitutional Right To Counsel ......

cCoOonnr Ww

11

14

15

18

iv

Il.

THIS CASE INVOLVES SUBSTANTIAL QUES-

TIONS UNDER THE FIFTH AND FOUR-

TEENTH AMENDMENT DUE PROCESS AND

SELF-INCRIMINATION CLAUSES ........ 23

III.

THE ILLINOIS SUPREME COURT DECISION

DIRECTLY CONFLICTS WITH THE DECTI-

SION OF ANOTHER STATE SUPREME COURT

CONCERNING THE SIXTH AMENDMENT

SE ie SE bs nhescccdawedaneane 26

SE Suk th dnectdednscackijpananahie 28

Te ahs deteneee dauhendhceweeerases App.

SE ee en er App. 7

CIES .-.5 unitrwecndavind« Sean Ve waren sie App. 13

IE iden h dngus Veneceduwe danas te App. 14

ET nisl «Sains chnthee awaaae Oe App. 23

i <~nisGksbascsweakbannawes is ous App. 24

PE <cpewdiaddasvedsGaxsawhecwawad App. 25

rE iti cue xwkeocdvébactaa se caus App. 27

V

TABLE OF AUTHORITIES

Cases PAGE

Bates v. State Bar of Arizona, 433 U.S. 350 (1977) . 2

Beck v. Alabama, 447 U.S. 625 (1980) ........ 16

Caldwell v. Mississippi, 472 U.S. 320 (1985) ... 16

California v. Trombetta, 467 U.S. 479 (1984) .. 25

Consolidation Coal Co. v. Bucyrus-Erie Co., 89 IIl.

2d 108, 482 N.E.2d 250 (1982) ............. il

Herring v. New York, 422 U.S. 853 (1975) .... 16

Hickman v. Taylor, 329 U.S. 495 (1947) ...... passim

In re Griffiths, 413 U.S. 717 (1973) ........... 2

In re Misener, 38 Cal. 3d 543, 698 P.2d 637 (1985) .. 26

In re Terkeltoub, 256 F. Supp. 683 (S.D.N.Y. 1966) .

PP Pe. Pe ere RR AEE rene ee I 16, 18, 20

Kimmelman v. Morrison, ____ U.S. ___., 106 S. Ct.

EE cies ccs 66 on Aes ks K eee kas 16

McMann v. Richardson, 397 U.S. 759 (1970) ... 15

Powell v. Alabama, 287 U.S. 45 (1932) ........ 15, 16

State v. Melvins, 155 N.J. Super. 316, 382 A.2d 925

CRIS cikvinekte daddcuddvasavde anaes 27

State v. Williams, 80 N.J. 472, 404 A.2d 34 (1979) ..

icdeadschphsadevsevidossedeceeeeaawan 12, 14, 18, 27

Strickland v. Washington, 466 U.S. 668 (1984) ... 16

United States v. Amrep Corp., 418 F. Supp. 473

PU WE ns wndn-e bacs deenebseueueeens 18

vi

United States v. Arthur Young & Co., 465 U.S.

DE vceidenetiedpasecécscivecesivecese 20

United States v. Felt, 502 F. Supp. 71 (D.D.C.

scnehheeds éebtenbate ss ocpeeeess<ccs 18

United States v. Marion, 404 U.S. 307 (1971) ... 25

United States v. Mazurie, 415 U.S. 947 (1974) ... 14

United States v. Nobles, 422 U.S. 225 (1975) . passim

United States v. Valenzuela-Bernal, 458 U.S. 858

SO 6650 06 bubul-db<4h S0enaeadeebeuch ese 25

Wardius v. Oregon, 412 U.S. 470 (1973) ..... 14, 23, 24

Weatherford v. Bursey, 429 U.S. 545 (1977) ... 17

Williams v. Florida, 399 U.S. 78 (1970) ....... 26

Constitutional Provisions

SE CE, WS canccccccccccescesecse passim

i P, WR cecccccsccsccsescosns passim

See Ms GEE, BRAY ccccccccccccesescces passim

Statutes and Rules

TD dn cn cneebebesbietceesecdes ses 2

I wncnvngenssasabensadneeens 14

sch banectecenteaseeseouacssds 14

ICOM vn dbdcccevectsedadebedeass 22

i. MD ccccccccccccesenceesess 12

wr Hs BD ancccocdctcsccecccasceces 12

Ill. Rev. Stat. ch. 110A, § 412 (1985) ......... 4, 5, 23

Til. Rev. Stat. ch. 110A, § 413 (1985) ......... passim

Ea ee nae

Minn. R. Crim. P. 9.02 2 PE Sir ie | Pt

See MN ES Or OP peGceeccsentccccasesces

N.J. R. Governing Crim. Prac. 3:13-3 .........

Dis es Ge Mie GE, We BD swcccccccccccce

Or. Rev. Stat. § 135.835 (1984) ...............

Bes ee, Gs TG Be BD ccccccccccccces

Utah Code Ann. § 77-35-16 (1982) .............

Woes Gs Ge, Ge Be Ge cc ccccccccccces

Wee. Ss an be diisccccessccssons

Other Authorities

Allis, Limitations on Prosecutorial Discovery of the

Defense Case in Federal Courts: The Shield of

Confidentiality, 50 S. Cal. L. Rev. 461 (1977) .

Mosteller, Discovery Against the Defense: Tilting

the Adversarial Balance, 74 Calif. L. Rev. 1567

GE bb ct Rende debedunswedsénndbhsoncacads

Pulaski, Extending the Disclosure Requirements of

the Jencks Act to Defendants: Constitutional

and Non-Constitutional Considerations, 64

Si en. OE Rodudbetankdcecésecs

BPHEBRRRBBRKRR RRB

19

18

19

In THE

Supreme Court of the United States

Ocroser Term, 1986

STANLEY BOCLAIR,

Appellant,

v.

PEOPLE OF THE STATE OF ILLINOIS,

Appellee.

On Appeal From The Supreme Court Of Illinois

JURISDICTIONAL STATEMENT

OPINIONS BELOW

The opinion of the Supreme Court of Illinois (App. A,

infra, App. 1-6), is not yet reported. The opinion of the

Illinois Appellate Court, Fourth District (App. D, infra,

App. 14-22), is reported at 139 Ill. App. 3d 350, 487 N.E.

2d 969 (1985). The opinion and order of the Circuit Court

for Livingston County, Illinois (App. B, infra, App. 7-12;

App. C, infra, App. 13), are not reported.

JURISDICTION

This is an appeal of a civil contempt citation entered

against defense counsel for failure to comply with a pre-

trial discovery order. Defense counsel declined to comply

with the order on the ground that the trial court’s in-

terpretation of an Illinois state statute, upon which the

order was based, was both erroneous, as a matter of Illi-

nois law, and repugnant to the Fifth, Sixth, and Four-

teenth Amendments to the United States Constitution.

The Illinois Appellate Court vacated the contempt order

on state law grounds (App. D, infra, App. 16-22), but the

Illinois Supreme Court reversed and reinstated the con-

tempt citation on February 20, 1987. (App. A, infra, App.

6.) A timely petition for rehearing was denied on March

30, 1987. (App. F, infra, App. 24.) Appellant filed a notice

of appeal on May 26, 1987. (App. G, infra, App. 25-26.)

This Court has jurisdiction under 28 U.S.C. § 1257(2), be-

cause the Illinois Supreme Court’s decision upholds the

validity of Illinois Supreme Court Rule 413, Ill. Rev. Stat.

ch. 110A, § 413 (1985), in the face of a federal constitu-

tional challenge to the Rule as applied to this case. See

Bates v. State Bar of Arizona, 433 U.S. 350, 355-58 (1977);

In re Griffiths, 413 U.S. 717, 718 (1973).

wide

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitu-

tion provides in pertinent part:

No person shall * * * be compelled in any criminal

case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of

law * * *,

The Sixth Amendment to the United States Constitu-

tion provides in pertinent part:

In all criminal prosecutions, the accused shall * * *

have the Assistance of Counsel for his defence.

The Fourteenth Amendment to the United States Con-

stitution provides in pertinent part:

Section 1. * * * No State shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States; nor shall any State

deprive any person of life, liberty, or property, with-

out due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

Illinois Supreme Court Rule 413, Ill. Rev. Stat. ch.

110A, § 413, provides in pertinent part:

Disclosure to Prosecution

* *k *

(d) Defenses. Subject to constitutional limitations

and within a reasonable time after the filing of a writ-

ten motion by the State, defense counsel shall inform

the State of any defenses which he intends to make

at a hearing or trial and shall furnish the State with

the following material and information within his posses-

sion or control:

(i) The names and last known addresses of

persons he intends to call as witnesses together

po

with their relevant written or recorded state-

ments, including memoranda reporting or sum-

marizing their oral statements, any record of

prior criminal conviétions known to him; and

(ii) any books, papers, documents, photographs,

or tangible objects he intends to use as evidence

or for impeachment at a hearing or trial;

(iii) and if the defendant intends to prove an

alibi, specific information as to the place where

he maintains he was at the time of the alleged

offense.

(e) Additional disclosure. Upon a showing of ma-

teriality, and if the request is reasonable, the court

in its discretion may require disclosure to the State

of relevant material and information not covered by

this rule.

Illinois Supreme Court Rule 412, Ill. Rev. Stat. ch.

110A, § 412, provides in pertinent part:

Disclosure to Accused

(a) Except as is otherwise provided in these rules

as to matters not subject to disclosure and protec-

tive orders, the State shall, upon written motion of

defense counsel, disclose to defense counsel the

following material and information within its posses-

sion or control:

(i) the names and last known addresses of per-

sons whom the State intends to call as witnesses,

together with their relevant written or recorded

statements, memoranda containing substantially

verbatim reports of their oral statements, and

a list of memoranda reporting or summarizing

th ral statements. Upon written motion of

defense counsel memoranda reporting or sum-

marizing oral statements shall be examined by

the court in camera and if found to be substan-

tially verbatim reports of oral statements shall

be disclosed to defense counsel;

a a

(ii) any written or recorded statements and

the substance of any oral statements made by

the accused or by a codefendant, and a list of

witnesses to the making and acknowledgment of

such statements;

(iii) a transcript of those portions of grand

jury minutes containing testimony of the accused

and relevant testimony of persons whom the

prosecuting attorney intends to call as witnesses

at the hearing or trial;

(iv) any reports or statements of experts,

made in or with the particular case, in-

cluding results of physical or mental examina-

tions and of stientitee tests, experiments, or com-

parisons, and a statement of qualifications of the

expert;

(v) any books, papers, documents, photographs

or tangible objects which the prosecuting attor-

ney intends to use in the hearing or trial or

which were obtained from or belong to the ac-

cused; and

(vi) any record of prior criminal convictions,

which may be used for impeachment, of persons

whom the State intends to call as witnesses at

the hearing or trial.

If the State has obtained from the defendant pur-

suant to Rule 413(d) information regarding defenses

the defendant intends to make, it shall provide to de-

fendant not less than 7 days before the date set for

the hearing or trial, or at such other time as the

court may direct, the names and addresses of wit-

nesses the state intends to call in rebuttal, together

with the information required to be disclosed in con-

nection with other witnesses by subdivisions (i), (iii)

and (vi), above, and a specific statement as to the

substance of the testimony such witnesses wil! give

at the trial of the cause.

*x* * *

sills

STATEMENT OF THE CASE

1. The Trial Court Proceedings.

On November 1, 1984, an indictment for murder was

returned against Stanley Boclair in the Circuit Court for

Livingston County, Illinois. Both the State and the defen-

dant, through the public defender, filed discovery motions

on November 7, 1984. (R. 1.)! On November 15, 1984, the

State filed its initial discovery response, which included

a list of 164 State witnesses. (R. 2.) Supplemental re-

sponses increased the number to approximately 225 State

witnesses (R. 3, 4), most of whom were inmates or em-

ployees of the Pontiac Correctional Center, where the

murder took place.

On December 19, 1984, the trial court appointed the law

firm of Jenner & Block and attorneys John H. Mathias,

Jr. and Joel T. Pelz of that firm as counsel for the defen-

dant and reaffirmed a prior order appointing an investiga-

tor to assist with the preparation of the defense. (R. 3.)

Thereafter, Mr. Pelz and the defense investigator inter-

viewed many of the State’s witnesses. During these inter-

views, the investigator took notes reflecting the demeanor

of the witnesses and certain of the questions and answers.

The interviews typically encompassed several hours, and

the notes taken summarized only the few portions of the

1 “R.” refers to the common law record on appeal. “Tr.” refers

to portions of the transcript of proceedings before the trial court

that are a part of the record on appeal. “Def. App. Br.” refers

to the brief filed by the appellant in the Illinois Appellate Court,

Fourth District. ‘Def. Br.” refers to the brief filed by the appel-

lant in the Illinois Supreme Court. “Def. Pet. Reh.’ refers to the

— for rehearing filed by the appellant in the Illinois Supreme

ourt.

aii...

conversations that the defense team believed to be im-

portant. (Tr. 80.) :

At a hearing on March 14, 1985, the State expanded

its earlier discovery request and asked for “notes and

memoranda that are being prepared or taken during inter-

views” of State witnesses. (Tr. 10, R. 5.)? The State did

not limit its request to those witnesses it actually intended

to call, but instead directed the request toward all of the

over 200 potential witnesses that it had chosen to name.

Defense counsel’s objection to this request (Tr. 11-12) was

fully briefed by the parties. (R. 9-138, 18-21, 22-24.) Defense

counsel argued that the request concerned materials that

were not discoverable under Illinois Supreme Court Rule

413; that the materials were subject to well-established

work product principles articulated by this Court and by

the Illinois Supreme Court; and that production of the

notes would violate the defendant’s constitutional rights.

(R. 11-12, 22-24.)

On May 9, 1985, the trial court held that the State was

entitled to pretrial discovery of the notes taken during

interviews of State witnesses under “Supreme Court Rule

413(dXii) and (e) and the inherent authority of the judiciary

to control and regulate the administration of criminal

justice.” (App. B, infra, App. 12.) The trial court rejected

defendant’s federal constitutional arguments. (App. B, infra,

App. 9.)

Pursuant to the court’s order of May 9, 1985, defense

counsel submitted the notes (R. 30) for in camera inspec-

2 The State knew who was being interviewed because defense

counsel was required to notify the | Heeecbiones of Corrections each

time he interviewed an inmate or correctional employee, and the

Internal Affairs investigator for the Department of Corrections

provided this information to the State’s Attorney. (Tr. 10.)

iil:

tion, and, on May 21, 1985, the trial court ordered the

production of virtually all of the notes made with respect

to the interviews with potential State witnesses. (App.

C, infra, App. 18, R. 31.) The court’s order did not limit

production to materials concerning witnesses who would

actually testify, nor did it limit production to materials

that might be used for impeachment, which was the only

“need” for the notes advanced by the State. (R. 31, Tr.

36-37, 86.) On May 29, 1985, Mr. Pelz, respectfully declined

to produce the notes, solely for the purpose of preserving

his client’s rights, including his right to challenge, on state

and federal grounds, the trial court’s unprecedented and

extraordinarily expansive interpretation of Rule 413. (Tr.

79, 86.) The court held Mr. Pelz in contempt and sentenced

him to “six days on conditional discharge conditioned upon

[his] performing two hours of public service work.” (Tr.

87.) Defense counsel promptly filed a notice of appeal with

the Illinois Appellate Court, contesting the contempt cita-

tion and challenging the legality and constitutionality of

the trial court’s expansive discovery order. (R. 34.)

2. The Illinois Appellate Court Proceedings.

In the Appellate Court, defense counsel challenged the

trial court’s ruling on numerous grounds. Among other

things, he argued that the trial court’s interpretation of

Illinois Supreme Court Rule 413 was repugnant to the

Fifth, Sixth, and Fourteenth Amendments because it

denied the defendant the effective assistance of counsel,

impaired the defendant’s due process right to a fair trial,

violated his privilege against self-incrimination, and disre-

garded the work product doctrine, as articulated by this

Court in Hickman v. Taylor, 329 U.S. 495 (1947), and

United States v. Nobles, 422 U.S. 225 (1975). (Def. App.

Br. 16-20, 27-32.)

= =

On December 12, 1985, the Appellate Court unanimously

reversed the discovery order and contempt citation en-

tered by the trial court. (App. D, infra, App. 14-22.) The

Appellate Court held that Rule 413 does not require the

production of these investigative notes, and that the notes

were subject to the work product protection articulated

in Hickman and Nobles. (App. D, infra, App. 17-21.) The

State filed a motion for rehearing, which was denied with-

out opinion on January 16, 1986. (App. D, infra, App. 14.)

3. The Illinois Supreme Court Proceedings.

On February 20, 1986, the State filed a petition for

leave to appeal to the Illinois Supreme Court. However,

the State did not seek to continue the trial or to expedite

the appeal. Thus, the trial commenced on April 7, 1986,

while the petition for leave to appeal was pending. (Def.

Br. 11.) In compliance with the Appellate Court’s ruling,

defense counsel did not produce the notes prior to trial,

but did, during trial, produce the notes pertaining to the

17 State witnesses who actually testified. (Def. Br. 11.)

On April 19, 1986, the jury returned a verdict of guilty,

and the court sentenced the defendant to death on July

17, 1986. (Def. Br. 11.)

On June 3, 1986, the Illinois Supreme Court granted

the State’s petition for leave to appeal. The parties fully

briefed and orally argued the issues. Defense counsel as-

serted that to reverse the Appellate Court, thereby reim-

posing a contempt citation against Mr. Pelz and establish-

ing an interpretation of Rule 413 that would require de-

fense counsel to provide to the State, prior to trial, the

fruits of the defense team’s investigative efforts, would,

among other things, conflict with the Sixth Amendment

right to the effective assistance of counsel, the Fifth and

Fourteenth Amendment due process guarantee of a fair

=

trial and the right against self-incrimination, and the work

product doctrine, which has constitutional dimensions in

the context of a criminal case. (Def. Br. 26-35, 44-51.)

On February 20, 1987, the Illinois Supreme Court re-

versed the Appellate Court, holding that the trial court

properly applied Rule 413(e), which accords the trial court

“limited” discretion to order additional discovery from the

defendant not set out in the Rule. (App. A, infra, App.

5.) The Illinois Supreme Court stated that “the notes are

relevant because they will prevent the State from being

surprised by the inconsistent statements of its witnesses,

and they will allow the State to prepare for impeachment

and to rehabilitate its witnesses or restructure its case

if necessary.” (App. A, infra, App. 5.) The Court made

no mention of the fact that the trial court’s order applied

to all State designated “witnesses,” even those who would

not testify at trial, and was not limited to impeachment

material. The Court further held that the notations re-

corded by the investigator during the interviews with

State witnesses were not work product. (App. A, infra,

App. 6.) The case was ordered remanded to the trial court

for enforcement of the contempt citation against Mr. Pelz.

(App. A, infra, App. 6.)°

. Although the Illinois Supreme Court explicitly recog-

nized that the defendant properly had raised federal con-

stitutional issues (App. A, infra, App. 2), the Court did

3 In the Illinois Supreme Court, appellant argued that the case

was moot, because the underlying criminal trial already had been

concluded, and defense counsel had complied with the Appellate

Court ruling, which was in effect at the time of trial. (Def. Br.

54-57.) However, the Court rejected that contention, holding that

the case was not moot because the contempt order remained to

be enforced. (App. A, infra, App. 3.)

sittin

not specifically address those arguments. Defense counsel

petitioned for rehearing, stressing the importance of the

issues involved and the likelihood of their arising again

in subsequent cases. (Def. Pet. Reh. 11-15.) Defense coun-

sel urged the Court to address the constitutional issues,

to explain why it had rejected the principles enunciated

in Hickman v. Taylor and United States v. Nobles, and

to explain why it had adopted a rule of law that provides

less work product protection to a criminal defendant than

is available to a party in a civil case under Consolida-

tion Coal Co. v. Bucyrus-Erie Co., 89 Ill. 2d 103, 432

N.E.2d 250 (1982). (Def. Pet. Reh. 5-9.) However, the

Court denied the petition without opinion on March 30,

1987. (App. F, infra, App. 24.) On April 9, 1987, defense

counsel moved to stay the issuance of the mandate, and

the Court, by Justice Miller, granted the stay pending the

resolution of the case by this Court. (App. H, infra, App.

27.) On May 26, 1987, appellant filed a notice of appeal

to this Court. (App. G, infra, App. 25-26.)

THE QUESTIONS ARE SUBSTANTIAL

This case presents fundamental questions concerning the

limitations which the United States Constitution places

upon the State’s ability to obtain pretrial discovery of

criminal defense case preparation materials. Because of

the dramatic increase, in recent years, in the number of

state law provisions and judicial interpretations requir-

ing criminal defendants to provide pretrial discovery to

the prosecution, the virtually unlimited pretrial discovery

sanctioned by the Illinois Supreme Court in this case pre-

=

sents constitutional questions of national importance.‘

These state law provisions and holdings have fundamen-

tally altered the nature of the criminal justice process,

but the constitutionality of these alterations has not yet

been addressed by this Court. Few issues could be more

important than establishing constitutional parameters for

determining when a criminal defendant, or his counsel,

must provide the fruits of his investigative efforts to the

State for use in preparing. its case against him. In the

absence of guidance from this Court, the federal constitu-

tional right to counsel, the right to due process of law,

and the privilege against self-incrimination undoubtedly

will continue to vary from state to state.

4 Numerous states in their statutes and court rules now allow

prosecutorial discovery of defense witness statements before trial.

See, e.g., Ariz. R. Crim. P. 15.2(cX1); Fla. R. Crim. P. 3.220(bX4\Xi);

Haw. R. Penal P. 16(cX2Xi); Ill. S. Ct. R. Crim. P. 413(d Xi), Ill.

Rev. Stat. ch. 110A, § 413 (1985); Mass. R. Crim. P. 14(aX3XA);

Minn. R. Crim. P. 9.02 Subd. 1(3Xb); Mo. R. Crim. P. 25.05(A\2);

Mont. R. Crim. P. 46-15-323(4Xa); N.H. Super. Ct. R. 99; N.J. R.

Governing Crim. Prac. 3:13-3(bX3); N.M. Dist. Ct. R. Crim. P.

28(aX3); Or. Rev. Stat. § 135.8351) (1984); R.1. Super. Ct. R. Crim.

P. 16(bX4); Wash. Super. Ct. Crim. R. 4.7(bX1); Wis. R. Crim. P.

971.24(i).

Five states give the trial court discretion to order the defense

to produce, before trial, acditional, unspecified materials. See Ariz.

R. Crim. P. 15.2(f); Ill. S. Ct. R. Crim. P. 413(e), Ill. Rev. Stat.

ch. 110A, § 413 (1985); Mo. R. Crim. P. 25.06; Mont. R. Crim. P.

46-15-323(6); Utah Code Ann. § 77-35-16(c) (1982).

Finally, at least two state court rules expressly allow pretrial

discovery of State witness interview notes from the defense. See

Minn. R. Crim. P. 9.02 Subd. 1(3Xb); N.J. R. Governing Crim. Prac.

3:13-3(bX4). However, the New Jersey Supreme Court declared

that, to the extent that the New Jersey rule required pretrial pro-

duction by defense counsel of his notes of interviews with State

witnesses, which would not be discoverable by the State under

Nobles, unless actually used by the defendant at trial, the rule

violated the Sixth Amendment right to the effective assistance of

a State v. Williams, 80 N.J. 472, 479-81, 404 A.2d 34, 37-39

1 ‘

~~

As authoritatively construed by the Illinois Supreme

Court, Rule 413 violates the United States Constitution

in at least three ways. First, the Rule interferes with

defense counsel’s pretrial preparation in violation of the

defendant’s Sixth Amendment right to the effective assist-

ance of counsel. Second, it impermissibly denies a criminal

defendant the protection of the work product doctrine,

which, in a criminal case, is constitutionally required by

the Sixth, Fifth, and Fourteenth Amendments.5 Third, it

deprives the defendant of his Fifth and Fourteenth Amend-

ment rights by affording the State greater discovery

rights than it provides the defendant, by interfering with

the defense team’s access to evidence, and by requiring

the defendant to assist the State in the preparation of

its case against him.

In addition, the decision of the Illinois Supreme Court

conflicts with this Court’s prior decisions and with the

decision of the highest court of another state. In United

States v. Nobles, this Court held that an investigator’s

notes are work product under Hickman v. Taylor, which

need be produced only when the investigator testifies at

trial. Defense counsel in this case repeatedly offered to

abide by that procedure. However, the State insisted on

more, and the Illinois Supreme Court, inexplicably pur-

porting to rely on Nobles as authority (App. A, infra,

App. 6), approved wholesale, pretrial production of such

notes. The decision of the Illinois Supreme Court also

5 The work product doctrine was established by this Court in

Hickman v. Taylor. In United States v. Nobles, this Court unam-

biguously held that work product _—— is even more impor-

tant in criminal cases than in civil cases. See 422 U.S. 225, 233

(1975). The substantial issue raised in this case is whether, as a

matter of federal constitutional law, a state court must provide

work product protection to a criminal defendant.

=e

directly conflicts with the New Jersey Supreme Court’s

decision in State v. Williams, 80 N.J. 472, 479, 404 A.2d

34, 37 (1979), which held that a discovery order requir-

ing production of investigative notes that would not be

used at trial violates the Sixth Amendment right to

counsel. Moreover, the Illinois Supreme Court’s decision

also grants discovery to the prosecution beyond that au-

thorized in Wardius v. Oregon, 412 U.S. 470 (1973), and

therefore conflicts with that decision as well.

For all of these reasons, the issues presented by this

case clearly are substantial and warrant review by this

Court.®

THIS CASE RAISES SUBSTANTIAL QUESTIONS UNDER

THE ASSISTANCE OF COUNSEL CLAUSE OF THE

SIXTH AMENDMENT.

The Illinois Supreme Court authoritatively construed

Rule 413 as providing for broad pretrial discovery to the

State. The Illinois Supreme Court therefore held that the

trial court’s discovery order was proper because pretrial

* Should this Court determine that either of the questions —

sented for review is not within its appellate jurisdiction, appellant

respectfully requests that this Court, pursuant to 28 U.S.C. § 2103,

treat those issues as if presented in a petition for a writ of cer-

tiorari. In the event that this jurisdictional statement is considered

as a petition for a writ of certiorari, — submits that this

case should be regarded as a civil case—because the contempt cita-

tion was civil in nature—and thus subject to the 90 day time limit

for filing a petition. However, if this Court determines that the

issues are not within its appellate jurisdiction, and that the case

is criminal in nature, appellant requests that the Court waive the

time limit for filing the petition set forth in Rule 20.1 and con-

a, the petition on its merits. United States v. Mazurie, 415 U.S.

, 947 (1974).

<i

disclosure of the interview notes would “prevent the State

from being surprised by the inconsistent statements of

its witnesses, and they will allow the State to prepare

for impeachment and to rehabilitate its witnesses or

restructure its case if necessary.” (App. A, infra, App.

5.)’? Essentially, the Court held that because defense coun-

sel may have information which the prosecutor does not

have, the State is entitled to the fruits of the defense

team’s efforts, even though the State has equivalent ac-

cess to the information. That interpretation of Rule 413

cannot be reconciled with the Sixth Amendment right to

effective assistance of counsel. See U.S. Const. amend. VI;

Powell v. Alabama, 287 U.S. 45, 57-58 (1932); McMann

v. Richardson, 397 U.S. 759, 771 n.14 (1970).8

1. The Illinois Supreme Court Decision Conflicts With Well-

Established Sixth Amendment Rights.

On several occasions, this Court has addressed the scope

and importance of the Sixth Amendment right to counsel.

“{(Tjhe right to the assistance of counsel has been under-

stood to mean that there can be no restrictions upon the

function of counsel in defending a criminal prosecution in

accord with the traditions of the adversary fact finding

7 Although the Illinois Supreme Court refers to “impeachment”’

and “witnesses,” the trial court’s order, which the Supreme Court

affirmed, was not limited to impeachment materials, nor was it

limited to witnesses who would actually testify at trial.

8 The interviews involved were of State designated witnesses.

Since these “witnesses” were State employees or persons com-

mitted to the custody of the State, the prosecutor and the State

investigators had ater access to them than did the defense

team. However, the State argued that it needed the defense

team’s notes because the witnesses might be untrustworthy. The

questionable character of the State’s witnesses cannot serve to

justify an erosion of constitutional rights.

—16—

process that has been constitutionalized in the Sixth and

Fourteenth Amendments.” Herring v. New York, 422 U.S.

853, 857 (1975). As this Court has recognized, pretrial in-

vestigation is “perhaps the most critical period of the pro-

ceedings . . . when consultation, thoroughgoing investiga-

tion, and preparation [are] vitally important. . . .” Powell

v. Alabama, supra, 287 U.S. at 57. Moreover, “{aJt the

heart of the job of ‘thoroughgoing investigation and prepa-

ration’ is the interviewing of prospective witnesses, hostile

as well as friendly.” Jn re Terkeltowb, 256 F. Supp. 683,

685 (S.D.N.Y. 1966) (footnote omitted). Thus, the Sixth

Amendment right to counsel must include the right, in-

deed the duty, of defense counsel to conduct pretrial in-

vestigation. See Kimmelman v. Morrison, __. U.S. ___,

___, 106 S. Ct. 2574, 2588-89 (1986); see also Strickland

v. Washington, 466 U.S. 668, 685 (1984).®

An integral part of trial preparation is the ability of

counsel to conduct witness interviews, based on informa-

tion provided by the defendant, and to freely discuss with

the defendant the information obtained and the plans for

the defense. As this Court has stated, “[glovernment vio-

lates the right to effective assistance when it interferes

in certain ways with the ability of counsel to make inde-

pendent decisions about how to conduct the defense.”

Strickland v. Washington, supra, 466 U.S. at 686 (cita-

tions omitted). Indeed, as the Solicitor General has ob-

served in briefs to this Court, “ ‘the Sixth Amendment’s

® The right to effective assistance of counsel is even more im-

portant in a death-eligible case like the present one. Because of

the “qualitative difference” between death and other punishments,

the Constitution requires a higher de of reliability at the guilt

stage, Beck v. Alabama, 447 U.S. 625, 637-38 (1980), and at the

— stage, Caldwell v. Mississippi, 472 U.S. 320, 323, 329

(1985).

=

assistance-of-counsel guarantee can be meaningfully imple-

mented only if a criminal defendant knows that his. . .

{attorney’s] lawful preparations for trial are secure from

the intrusion by the government, his adversary in the

criminal proceeding.’”” Weatherford v. Bursey, 429 U.S.

545, 554 n.4 (1977) (quoting Brief for United States, Hoffa

v. United States, 0.T. 1966, No. 32, at 71, quoted in Brief

for United States as Amicus Curiae in Weatherford v.

Bursey, No. 75-1510, at 24 n.13).

As authoritatively construed by the Illinois Supreme

Court, Rule 413 limits counsel’s right to conduct pretrial

investigation and impedes counsel’s ability to communicate

with and to obtain the confidence of the defendant, a re-

sult that is repugnant to the Sixth Amendment.

In effect, Rule 413 now approves and encourages at-

tempts by the State to have defense counsel act as an

investigative arm of the State. Such a result cannot help

but have a chilling effect on the investigations conducted

by defense counsel, and prevents counsel from acting as

an advocate for his client. In the case at bar, for exam-

ple, the State named over 200 “witnesses,” but called only

17 as witnesses at trial. Many of the witnesses named but

never called were either not interviewed or interviewed

only briefly by the State. In requesting pretrial produc-

tion of the defense interview notes, the State sought to

use defense counsel to obtain additional information to

bolster its case, and, also, to have defense counsel go out

and find out which of the over 200 potential witnesses

might actually have information helpful to the State, thus

permitting the State to have an investigation conducted,

without expending its own resources to do so. The Illinois

Appellate Court correctly noted that “[t]he State’s Attorney

has access to each person the defense has interviewed.

He is not also entitled to use the effort of defense counsel

to shore up weaknesses in his case or to uncover new

=

avenues of inquiry.” (App. D, infra, App. 19.) As Justice

Jackson perceptively observed, the prosecution was at-

tempting “to perform its functions either without wits or

on wits borrowed from the adversary.” Hickman v.

Taylor, supra, 329 U.S. at 516 (Jackson, J., concurring).

In addition, of course, pretrial discovery of defense notes

greatly increases the likelihood that the State will be able,

in its discretion, to require the trial testimony of a defense

lawyer or investigator, and to create the unseemly spec-

tacle of pitting the lawyer’s or investigator’s credibility

against that of an occurrence witness. The Illinois Supreme

Court has given its imprimatur to this pernicious, and clearly

unconstitutional, method of criminal prosecution.

The decision below may make prosecution easier for the

State, but it cuts across the constitutional grain of our

adversary system of criminal justice and makes a mockery

of the right guaranteed by the Sixth Amendment. See

State v. Williams, supra, 80 N.J. at 479, 404 A.2d at 37.

2. The Illinois Supreme Court Decision Conflicts With This

Court’s Established Work Product Doctrine, Which, In

Criminal Cases, Is Informed And Required By The Con-

stitutional Right To Counsel.

The work product doctrine, as established by this Court

in Hickman v. Taylor and United States v. Nobles, is

based upon principles which, in criminal cases, are rooted

in the Constitution, and which cannot be ignored without

violating constitutional rights.'° Although neither Hick-

10 A number of federal courts and commentators have

that the work product doctrine is constitutionally based, insofar

as it relates to criminal cases. See, e.g., United States v. Felt, 502

F. Supp. 71, 74 (D.D.C. 1980); United States v. wag Fi 418

F. Supp. 473, 475 (S.D.N.Y. 1976); In re Terkeltoub, F. Supp.

683, 685.86 (S.D.N.Y. 1966); Mosteller, “yey 4 Against the De-

fense: Tilting the Adversarial Balance, 74 Calif. L. Rev. 1567, 1663

(Footnote continued on following page)

~~

man nor Nobdles was decided on constitutional grounds,

appellant submits that this Court should now consider and

resolve the constitutional scope of the work product doc-

trine in a criminal case. Because the decision below direct-

ly conflicts with Hickman and Nobles, and virtually elim-

inates work product protection in a criminal case, it is

contrary to the Sixth Amendment.

In Hickman, this Court considered the question whether

opposing counsel could discover oral and written state-

ments of witnesses interviewed by counsel in a civil case.

The Court answered this question in the negative, stating:

In performing his various duties, . . . it is essential

that a lawyer work with a certain degree of privacy,

free from unnecessary intrusion by opposing parties

and their counsel. Proper preparation of a client’s

case demands that he assemble information, sift what

he considers to be the relevant from the irrelevant

facts, prepare his legal theories and plan his strategy

without undue and needless interference. That is the

historical and necessary way in which lawyers act

within the framework of our system of jurisprudence

to promote justice and to protect their clients’ in-

terests. This work is reflected, of course, in inter-

views, statements, memoranda, correspondence, briefs,

mental impressions, personal beliefs, and countless

other tangible and intangible ways—aptly though

roughly termed by the Circuit Court of Appeals in

10 continued

(1986); Pulaski, Extending the Disclosure Requirements of the

Jencks Act to Defendants: Constitutional and Nonconstitutional

Considerations, 64 Iowa L. Rev. 1, 29 n.155 (1978); Allis, Limita-

tions on Prosecutorial Discovery of the Defense Case in Federal

Courts: The Shield of Confidentiality, 50 S. Cal L. Rev. 461, 507-10

(1977). The principal constitutional aspect of work product is in

the Sixth Amendment right to counsel, but there are Fifth and

Fourteenth Amendment process and self-incrimination aspects

to the doctrine as well. See pp. 23-26 & n.14, infra.

—20—

this case as the “work product of the lawyer.’ Were

such materials open to opposing counsel on mere de-

mand, much of what is now put down in writing would

remain unwritten. An attorney’s thoughts, heretofore

inviolate, would not be his own. Inefficiency, unfair-

ness and sharp practices would inevitably develop in

the giving of legal advice and in the preparation of

eases for trial. The effect on the legal profession

would be demoralizing. And the interests of the clients

and the cause of justice would be poorly served.

Hickman v. Taylor, supra, 329 U.S. at 510-11. As the Court

more recently has observed, “t]he Hickman work prod-

uct doctrine was founded upon the private attorney’s role

as the client’s confidential advisor and advocate, a loyal

representative whose duty it is to present the client’s case

in the most favorable possible light.’’ United States v.

Arthur Young & Co., 465 U.S. 805, 817 (1984).

In applying the Hickman principle to federal criminal

cases, the Court recognized in United States v. Nobles,

supra, 422 U.S. at 238 (footnote omitted; emphasis added),

that “the work-product doctrine[’s] . . . role in assuring

the proper functioning of the criminal justice system is

even more vital [than in civil cases]. The interests of socie-

ty and the accused in obtaining a fair and accurate resolu-

tion of the question of guilt or innocence demand that

adequate safeguards assure the thorough preparation and

presentation of each side of the case.” In a criminal trial,

11 Moreover, as the court noted in Jn re Terkeitoub, supra, 256

F. Supp. at 685:

The ultimate interest to be protected is the privacy and con-

fidentiality of the lawyer’s work in preparing the case. It is

the violation of that interest that is held offensive to the Con-

stitution in the cases of eavesdropping and spying. The pro-

tection would be a thin illusion if the Government could have

for the asking what it has, in rare lapses, sought by less genteel

means.

—

the role and performance of defense counsel are measured

by constitutional standards. To ensure that the rights of

an accused are adequately protected, the work product

doctrine must be deemed constitutionally required in crim-

inal cases.

In Nobles, defense counsel was allowed at trial to ques-

tion the State’s witnesses concerning what they had told

the defense investigator. Even though this questioning

suggested that the State witnesses had given prior incon-

sistent statements, the trial court did not order the pro-

duction of the investigator’s notes at that time. Instead,

the trial court ruled that a portion of the investigator’s

report, limited to impeaching statements, would have to

be produced only if the investigator actually took the

stand. When defense counsel declined to produce the ex-

cerpts of the notes, the trial court ruled that the investi-

gator could not testify.

In affirming the trial court’s ruling in Nobles, this Court

noted that:

The court authorized no general “fishing expedition’’

into the defense files or indeed even into the defense

investigator’s report. Rather, its considered ruling

was limited in — opening to prosecution scrutiny

only the portion of the report that related to the tes-

timony the investigator would offer to discredit the

witnesses’ identification testimony.

United States v. Nobles, supra, 422 U.S. at 240 (citation

omitted). This Court recognized that the witness interview

notes were privileged, but held that the privilege would be

deemed to have been waived when the defendant chooses to

call the investigator as a witness. Jd. at 239. This is precisely

the procedure that defense counsel, in the case at bar,

repeatedly expressed his willingness to follow; it is pre-

29

cisely the procedure that the Illinois Appellate Court ap-

proved (App. D, infra, App. 20-21), and the procedure that

the Illinois Supreme Court rejected.

Because Nobles limits discovery to the time of trial and

then allows, not a “fishing expedition,” but only discovery

of material as to which the work product privilege has

been waived, it does not stunt investigative efforts by the

defense team. Thus, the Nodles procedure protects the

Sixth Amendment right of an accused to the effective as-

sistance of counsel. At the same time, it accommodates

the State’s interest in seeking the truth, because it

prevents defense counsel from presenting “half-truths” by

utilizing only the exculpatory portions of the notes. The

decision below upsets this careful balance, which this

Court set in Nobles. By abandoning the Nobles procedure

and allowing unlimited pretrial production of investigative

materials, the decision below creates a rule which gives

no weight whatever to the Sixth Amendment interests at

issue. !2

Moreover, even if this Court were to decline to consti-

tutionalize the work product doctrine, it is nonetheless

clear that the Illinois Supreme Court’s construction of

Rule 413 results in such a gross departure from the well-

established role of criminal defense counsel that it violates

the Sixth Amendment rights of the accused. The decision

12 The State here demonstrated no particularized need for pretrial

discovery. As Justice White stated in Nobles, “{in the main, where

a party seeks to discover a statement made to an opposing party

in order to prepare for trial, he can obtain the ‘substantial equiva-

lent . . . by other means,’ Fed. Rule Civ. Proc. 26(bX3), 7.e., by

interviewing the witness himself.” United States v. Nobles, supra,

422 U.S. at 248 (White, J. concurring) (emphasis in original). That

is especially true in this case, where the interview notes relate

to the State’s own witnesses.

—~23—

below compels defense counsel to produce handwritten

witness interview notes to the State for any use what-

ever, including further investigation and trial preparation.

This procedure exemplifies the “fishing expedition” which

was condemned by this Court in Nobles and is repugnant,

in any event, to the Constitution. The Illinois Supreme

Court’s abandonment of fundamental Sixth Amendment

principles warrants review by this Court.

II.

THIS CASE INVOLVES SUBSTANTIAL QUESTIONS

UNDER THE FIFTH AND FOURTEENTH AMENDMENT

DUE PROCESS AND SELF-INCRIMINATION CLAUSES.

The Illinois Supreme Court’s construction of Rule 413

raises serious constitutional issues under the Fifth and

Fourteenth Amendments which should be addressed by

this Court. First, it violates due process because it ac-

cords the State pretrial discovery more expansive than

that which is granted to an accused by Rule 412. Due

process requires, at a minimum, that an accused receive

equal discovery rights. See Wardius v. Oregon, supra, 412

U.S. at 475.

Under Supreme Court Rule 412, the State need only

produce to the defendant “substantially verbatim reports”

of its own witnesses. As construed by the Illinois Supreme

Court in the decision below, Rule 413 goes beyond this

and requires that the defendant produce impressionistic

summaries of interviews with the prosecution’s witnesses.

This imbalance in discovery, tilted toward the State, vio-

lates the due process standard articulated in Wardius.

Moreover, the particular facts of this case further dem-

onstrate the constitutional impropriety of the State’s dis-

covery request and of the court’s approval of that request.

th...

Although defense counsel produced handwritten notes for

court inspection, the State produced only typewritten sum-

maries of its investigator’s interview notes.!* What was

deleted from the originals by way of text, organization,

emphasis, marginal notations, and the like, will never be

known. Moreover, even after a trial court order requiring

production of handwritten notes (Tr. 12), the State investi-

gators continued to destroy them. Thus, it is clear that

the trial court’s order did-not constitute reciprocal dis-

covery. Whether the Illinois Supreme Court’s approval of

such biatant efforts by the prosecution to obtain additional

advantages in a criminal case should be allowed under the

federal Constitution is an issue that should be addressed

by this Court.

In addition, the decision of the Illinois Supreme Court

upsets the traditional adversarial balance because it fails

to consider that the State has the distinct advantage of

having vast investigatory resources at its disposal. See

Wardius v. Oregon, supra, 412 U.S. at 475 n.9. This fact

has led this Court to conclude that “the State’s inherent

information-gathering advantages suggest that if there is

to be any imbalance in discovery rights, it should work

in the defendant’s favor.”” Jd. The rule established by the

Illinois Supreme Court’s decision gives effect to the polar

opposite of that sound, and constitutionally necessary,

principle. The system of criminal discovery endorsed by

the Illinois Supreme Court, which shifts the balance in

favor of the State, violates due process.

Second, the decision below violates due process for the

additional reason that it sanctions governmental interfer-

13 The State’s Attorney stated that he did not take notes because

he did not want to produce them. (Tr. 14.)

—25—

ence with defense counsel’s pretrial investigation. As this

Court recognized in California v. Trombetta, 467 U.S. 479,

486 (1984), the government “transgress[es] [due process]

limitations if it exercise[s] its sovereign power so as to

hamper a criminal defendant’s preparation for trial.” Ac-

cordingly, where, as here, the government interferes with

the defense’s access to evidence, it violates due process.

See, e.g., id. at 485; United States v. Valenzuela-Bernal,

458 U.S. 858, 867 (1982); United States v. Marion, 404

U.S. 307, 325-26 (1971). The discovery rule upheld by the

Illinois Supreme Court discourages defense counsel’s ef-

forts to interview State witnesses, and places an unwar-

ranted premium upon defense counsel’s failure to take

notes of such interviews (see Hickman v. Taylor, supra,

329 U.S. at 510-11), thus impeding the defendant’s prepa-

ration for trial and violating due process.

Finally, the decision below also violates a defendant’s

right against compelled self-incrimination. By talking with

counsel about whom to interview and what kinds of ques-

tions to ask, the defendant can only work against his own

interests and in furtherance of the prosecutorial machinery

of the State. The already difficult task of securing the

confidence of a criminal defendant necessarily will be ex-

acerbated if the accused has good cause to view the public

defender or court-appointed counsel, not as a fearless ad-

vocate on his behalf, but as an effective, if unwilling, con-

duit for the transmission to the State of the accused’s

most efficacious thoughts about his own defense. Such

court ordered assistance to the State violates the com-

mand of the Fifth Amendment that “‘no person. . . shall

be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend V. The rule established by

the decision below cannot pass constitutional muster be-

cause “it requires a defendant to disclose information to

—26—

the State so that the State can use that information to

destroy him.” Williams v. Florida, 399 U.S. 78, 111 (1970)

(Black, J. dissenting); see In re Misener, 38 Cal. 3d 543,

698 P.2d 637 (1985).14

The Illinois Supreme Court’s authoritative construction

of Rule 413 threatens not only the due process and self-

incrimination rights of the accused, but also the very in-

tegrity of our adversary system of criminal justice. To

protect this defendant, and-future defendants, and to en-

sure that defense counsel is not wrongfully punished for

protecting his client’s constitutional rights, this Court

should grant plenary review and declare that Rule 413,

as construed and applied by the Illinois Supreme Court,

is unconstitutional.

THE ILLINOIS SUPREME COURT DECISION DIRECTLY

CONFLICTS WITH THE DECISION OF ANOTHER STATE

SUPREME COURT CONCERNING THE SIXTH AMEND-

MENT RIGHT TO COUNSEL.

If this Court should determine that this appeal does not

lie within its appellate jurisdiction (see p. 14 n.6, supra),

this jurisdictional statement should be treated as a peti-

tion for a writ of certiorari, which should be granted

to resolve the conflict between the decision below and

14 The total disregard of the work product doctrine in this case also

impairs due process and self-incrimination rights. Pretrial investi-

gation is essential to an effective defe.ise and a fair trial. The work

product doctrine, which was eviscerated by the Illinois Supreme

Court in this case, provides the protection necessary to accord the

defense team an opportunity to prepare a defense, without con-

tributing the fruits of its labors to the prosecution. Thus, it is con-

stitutionally required by the Fifth Amendment.

—27—

the New Jersey Supreme Court’s decision in State v.

Williams. In Williams, the Court considered the precise

issue presented in this case, i.e., the propriety of a dis-

covery order that compels the defense to produce, prior

to trial, investigative notes taken from interviews of State

witnesses. The New Jersey Court expressly endorsed the

Nobles procedure and held that a general order requir-

ing defense counsel to turn over his notes of interviews

with State witnesses, which the defense did not intend

to use at trial, violated the Sixth Amendment guarantee

of effective assistance of counsel. The Court reasoned:

To hold otherwise would infringe on a defendant’s

constitutional right to the effective assistance of

counsel because of the chilling effect it would have

on defense investigation. Defense counsel would be

hesitant to make an in-depth investigation of the case

for fear that inculpatory material would be disclosed

which might have to be turned over to the State.

State v. Williams, supra, 80 N.J. at 479, 404 A.2d at 37;

see State v. Melvins, 155 N.J. Super. 316, 320-22, 382 A.2d

925, 927-28 (App. Div. 1978) (pretrial production of expert

reports must be limited to those that will be used at trial).

The Illinois Supreme Court’s decision completely fails

to address the constitutional concerns that the New Jersey

Supreme Court found dispositive, and it places defense

counsel in the untenable position of having to choose be-

tween three pernicious alternatives: (1) choosing not to

interview witnesses, (2) refraining from taking any notes

during interviews, or (3) assisting the State with the prepa-

ration of its case by turning over interview notes to the

State, and, possibly, being called by the State to testify

at trial in an unseemly swearing contest with an occur-

rence witness. None of these alternatives is constitutionally

acceptable, and each interferes with the defendant’s Sixth

—28—

Amendment right to the effective assistance of counsel.

The holding and reasoning of the New Jersey Supreme

Court are persuasive, and the conflict with the decision

below demonstrates the necessity for further guidance

from this Court on this issue.

CONCLUSION

Probable jurisdiction should be noted.

Respectfully submitted,

JerRoLD S. Soiovy *

Joun H. Maruias, Jr.

Barry SULLIVAN

Joe, T. Pewz

JerrREY T. SHAW |

JENNER & BLOCK

One IBM Plaza

Chicago, Illinois 60611 |

(312) 222-9350

Attorneys for Appellant

Dated: June 26, 1987 * Counsel of Record

App. 1

APPENDIX A

Docket No. 63132—Agenda 7—November 1986.

THE PEOPLE OF THE STATE OF ILLINOIS,

Appellant, v. STANLEY BOCLAIR, Appellee.

JUSTICE RYAN delivered the opinion of the court:

In the case giving rise to this appeal, Stanley Boclair

was charged with four counts of murder in the circuit

court of Livingston County. While preparing his defense,

defendant’s court-appointed counsel and investigator inter-

viewed many persons who were listed by the State as

potential prosecution witnesses. During the course of

pretrial discovery, tue State requested discovery of the

notes taken during these interviews by the defendant’s

investigator. When defendant’s attorney refused to turn

the notes over to the State, as ordered by the trial court,

he was held in contempt of court. The appellate court re-

versed the trial court’s pretrial discovery order and the

contempt citation (139 Ill. App. 3d 350), and we granted

the State’s petition for leave to appeal. We now reverse

the appellate court and affirm the trial court’s contempt

citation.

On November 1, 1984, defendant was charged with four

counts of murder in connection with an incident that oc-

curred while he was an inmate at Pontiac Correctional

Center. Pursuant to defendant’s trial on these charges,

pretrial discovery motions were filed by both defendant

and the State. In response to defendant’s request for a

list of the State’s witnesses, the State listed over 200

potential witnesses, most of whom were inmates or em-

ployees of Pontiac Correctional Center. Both the State

and defendant requested discovery of memoranda and

App. 2

notes of the other’s investigators that reflected oral

statements given by a witness or a potential witness, pur-

suant to Supreme Court Rules 412(a) and 413(d) (87 Ill. 2d

Rules 412(a), 413(d)).

At two hearings held before the trial court, defendant

objected to the State’s request that he produce notes of

his investigator that were prepared during interviews of

State witnesses. Defendant argued that the notes were

not subject to pretrial discovery under Rule 413, that

they were work product, and that his constitutional rights

would be violated if he was required to produce the notes.

The trial court concluded that the notes were discover-

able under Rules 413(dXii) and (e). The court ordered

defendant to produce the notes for an in camera inspec-

tion to determine which, if any, portions of the notes were

protected work product. The trial court inspected the

notes, high-lighted the discoverable portions, and ordered

those portions produced. Defense counsel refused to pro-

duce the notes as ordered, and he was held in contempt

and sentenced to “six days on conditional discharge con-

ditioned upon [his] performing two hours of public ser-

vice work.”

Defendant’s counsel sought review before the appellate

court, and defendant’s trial was continued pending the ap-

pellate court’s decision. The appellate court reversed, con-

cluding that production of the notes was not required

under Rule 413, and that the notes were privileged under

the work product rule (87 Ill. 2d R. 412).

The State then filed its petition for leave to appeal to

this court but did not seek a continuance of the trial or

an expedited appeal. The underlying criminal action pro-

ceeded to trial and defendant was found guilty. The de-

fense investigator’s notes were produced at trial in ac-

cordance with the appellate court’s decision.

App. 3

The threshold question in this case is whether the issues

raised by the parties are moot. Counsel argues that since

the notes were produced at trial, and since defendant has

been tried and convicted, this case is moot.

This court has held that a reviewing court must dismiss

a pending appeal where the court has notice of facts which

make it impossible to grant effective relief to either party.

(George W. Kennedy Construction Co. v. City of Chicago

(1986), 112 Ill. 2d 70, 76.) We will not render an opinion

when it would have only an advisory effect. (People ex

rel. Black v. Dukes (1983), 96 Ill. 2d 273, 276.) A case

is considered moot when it “presents or involves no ac-

tual controversy, interests or rights of the parties, or

where the issues have ceased to exist.” People v. Redlich

(1949), 402 Ill. 270, 278-79.

In the instant case, defendant’s attorney was cited for

contempt for refusing to turn over designated portions

of his investigator’s notes to the State prior to trial. This

was a civil contempt (see People ex rel. Kazubowski v.

Ray (1971), 48 Ill. 2d 413, 416, cert. denied (1971), 404

U.S. 818, 30 L. Ed. 2d 118, 92 S. Ct. 78), which could

be purged by compliance with the terms of the trial

court’s order. (Continental Illinois National Bank v.

Brach (1979), 71 Ill. App. 3d 789, 792-93). While it appears

that defendant’s attorney did in fact produce the investi-

gator’s notes relating to actual witnesses during the trial,

this production was not in compliance with the trial court’s

order to produce all designated notes prior to trial. Coun-

sel did not purge himself of contempt, and the contempt

order, with its attendant sentence, remains to be enforced.

The trial court ordered defendant’s attorney to produce

his investigator’s notes on the basis of Rules 413(d)ii) and

(e) and the inherent authority of the judiciary to control

and regulate the administration of criminal justice. Since

our adoption of Rule 413 has removed pretrial discovery

App. 4°

by the prosecution from the purview of the trial courts’

discretionary authority (People v. Williams (1981), 87

Ill. 2d 161, 165; People v. Elbus (1983), 116 Ill. App. 3d

104, 107), we consider only the statutory arguments.

The goals of pretrial discovery in a criminal trial are to

promote the search for truth and to eliminate surprise

as a trial tactic. (People v. Rayford (1976), 43 Ill. App. 3d

283, 286.) The same underlying goals are served both by

discovery against the prosecution and by discovery against

the defense. (See Zagel & Carr, State Criminal Discovery

and the New Illinois Rules, 1971 U. Ill. L.F. 557, 584.)

Rule 413 allows for broad disclosure to the prosecution

subject to constitutional limitations in favor of the defen-

dant, most commonly the privilege against unreasonable

searches and seizures and the privilege against self-

incrimination.

The State contends that the defense investigator’s notes

are discoverable under Rule 413(dXii), which provides that

the defense must furnish the prosecution with “any books,

papers, documents, photographs, or tangible objects he

intends to use as evidence or for impeachment at a hear-

ing or trial.” (87 Ill. 2d R. 413(dXii).) We reject this in-

terpretation and agree with the appellate court, which

concluded that the word “papers” cannot be defined so

broadly as to include the investigative notes at issue in

this case.

The State also urges us to allow discovery of the

defense investigator’s notes under Rule 413(e). Rule 413(e)

provides as follows:

“Additional disclosure. Upon a showing of materi-

ality, and if the request is reasonable, the court in

its discretion may require disclosure to the State of

relevant material and information not covered by this

rule.” (87 Ill. 2d R. 4138(e).)

a a et TT A

App. 5

Under this rule, the trial court has limited discretion to

order disclosure of relevant material to the State. The

appellate court concluded that Rule 413(e) should be given

a limited reading and, since the defense investigator’s

notes were only relevant if the investigator testified to

impeach a State witness, application of the rule was not

appropriate in this case.

Rule 413(e) allows the trial court to order additional

discovery not covered in other sections of the rule. (See

87 Ill. 2d R. 413, Committee Comments.) While the scope

of the court’s discretion was intended to be limited (see

People v. Manley (1974), 19 Ill. App. 3d 365, 370), we con-

clude that its application was appropriate in this case.

Contrary to the appellate court’s conclusion regarding the

relevance of the investigator’s notes, their use would not

be limited to refreshing the defense investigator’s recol-

lection. In fact, the notes are relevant because they will

prevent the State from being surprised by the inconsis-

tent statements of its witnesses, and they will allow the

State to prepare for impeachment and to rehabilitate its

witnesses or restructure its case if necessary. Since the

defense investigator’s notes were material and relevant

to the legitimate ends of discovery, we conclude that the

trial court did not abuse its discretion by ordering dis-

covery of the notes. See People v. Lego (February 20,

1987), No. 59908.

Defendant’s counsel also argues that the investigator’s

notes are protected from discovery by the work-product

privilege. On this issue, the appellate court agreed that

the notes were protected under Rule 412(jXi). The work-

product rule provides that disclosure “shall not be re-

quired of legal research or of records, correspondence,

reports or memoranda to the extent that they contain the

opinions, theories or conclusions of the State or members

App. 6

of its legal or investigative staffs, or of defense counsel

or his staff.” 87 Ill. 2d R. 412(jXi).

While we recognize that the work-product rule exists

to protect the mental processes of an attorney and his

investigators, we note that the privilege is not absolute.

(United States v. Nobles (1975), 422 U.S. 225, 239, 45 L.

Ed. 2d 141, 154, 95 S. Ct. 2160, 2170.) We outlined the

scope and operation of the work-product rule in People

v. Szabo (1983), 94 Ill. 2d: 304. In Szabo, we concluded

that handwritten notes taken during an interview with

a witness are not work product per se. Instead, we stated

that “the determination whether memoranda summarizing

a witness’ oral statements consist of or contain privileged

material is to be made by the court.” People v. Szabo

(1983), 94 Ill. 2d 327, 344.

In the case at bar, defendant’s investigator’s notes were

examined in camera by the trial court. As required by

Szabo (see also People v. Bassett (1974), 58 Ill. 2d 285,

292), the trial court excised irrelevant and privileged mat-

ter, and ordered defendant to turn over only the portions

of the notes that contained factual statements which could

“fairly be said to be the witness’ own words.” (People

v. Szabo (1983), 94 Ill. 2d 327, 345.) Therefore, we con-

clude that the work-product rule was not violated.

The judgment of the appellate court is reversed. The

cause is remanded to the circuit court of Livingston Coun-

ty for the enforcement of its contempt order.

Reversed and remanded.

JUSTICE SIMON took no part in the consideration or

decision of this case.

Entered: February 20, 1987

ae. 7

APPENDIX B

STATE OF ILLINOIS In The Circuit Court Of The

COUNTY OF LIVINGSTON—ss_ Eleventh Judicial Circuit

THE PEOPLE OF THE STATE OF ILLINOIS

VS. No. 84-CF-151

STANLEY BOCLAIR.

ORDER

This cause has come on for hearing upon the motion

of the State’s Attorney to discover certain reports made

by an investigator, Anthony Matens, who was employed

by the defense counsel, Joel T. Pelz, to conduct interviews

with persons listed upon the People’s response to the de-

fendant’s Motion for Discovery.

The Indictment in this case alleges offenses committed

in the Pontiac Correctional Center on October 7, 1984.

The People, in respoxge to the defendant’s Motion for Dis-

covery. listed numerous (approximately 141) prison in-

mates as possible prosecution witnesses. Mr. Pelz, acting

as pro bono defense counsel, sought the court’s consent

to retain the services of an investigator to interview the

witnesses and to make a report of his investigation to

defense counsel. The court allowed the motion, and autho-

rized the expenditure of public funds to hire an investi-

gator to assist Mr. Pelz in investigating this case. Mr.

Matens went out to the Pontiac Correctional Center and

to other correctional centers around the State of Illinois

to interview the witnesses. After each interview, he pre-

pared a report to Mr. Pelz in which he summarized the

areas of evidence in which the witness might possess

App. 8

knowledge and might be expected to testify. The reports

also purportedly contained comments relating to Mr.

Matens’ assessment of the credibility of the witnesses, in

some cases including evidence of the witnesses’ prior con-

victions. The State’s Attorney has sought to discover

these reports.

The credibility of inmate witnesses is a very crucial con-

cern in the trial of any offense alleged to have been com-

mitted within a correctional center because of several fac-

tors not present in most other types of criminal litiga-

tion. First, virtually every prison inmate is subject to im-

peachment by virtue of his prior conviction of one or more

infamous crimes. Second, virtually every prison inmate is

desirous of obtaining his release as soon as possible. He

is therefore subject to possible manipulation with regard

to his testimony in order to gain favor with the prison

administration by appearing to be cooperative with the

prosecution. He thereby hopes to gain an early release

from the Department of Corrections, transfer to a less

restrictive institution, or some other privilege or advan-

tage which the administration may be able to bestow. Fi-

nally, virtually every prison inmate is subject to threats

of harm or other forms of intimidation from individual in-

mates or from prison gangs to an extent not likely to be

experienced by a non-inmate witness. With these factors

in play, it is little wonder that such witnesses are more

likely than most to make inconsistent statements to sev-

eral investigators who may interview them with respect

to a particular event.

For this reason, the court believes that the People have

made a strong case for the discovery or such reports.

Moreover, the court believes that the criminal judicial

process should be a search for the truth, and that the

broadest latitude for discovery of evidence in advance of

trial will enhance the truth-seeking process.

Aw i seh ce, te ll “Uh

i i a Peat i Ti Spt 0 Ad we boll We

App. 9

The first step in resolving a question relative to the

scope of discovery is to determine whether the material

sought to be discovered is privileged. Consolidated Coal

Co. v. Bucyrus-Erie Co., 89 Ill. 2d 108, 4832 N.E. 2d 250

(1982). In the situation presented by this case, there are

two privileges which must be considered. The first priv-

ilege is of constitutional dimension. The Fifth Amendment

to the Constitution of the United States establishes the

privilege against self-incrimination. The Fifth Amendment

is intended to protect the “private inner sanctum of in-

dividual feeling and thought and proscribes state intru-

sion to extract self condemnation’. United States v.

Nobles, 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160

(1975); Couch v. United States, 409 U.S. 322, 34 L. Ed. 2d

548, 93 S. Ct. 611 (1973). It appears to the court that dis-

closure of relevant portions of a defense investigator’s

report does not infringe upon the fundamental values pro-

tected by the Fifth Amendment. United States v. Nobles,

422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160 (1975).

The second privilege which has to be considered is the

work product privilege. In Consolidated Coal Co. v.

Bucyrus-Erie Co., 89 Ill. 2d 103, 482 N.E. 2d 250 (1982)

the Supreme Court of Illinois recognized that attorney’s

notes and memoranda of oral conversations with witnesses

are not routinely discoverable because they necessarily

reveal, in varying degrees, the attorney’s mental processes

in evaluating the communications. Illinois Supreme Court

Rule 412 has extended that precept of civil discovery to

discovery in criminal cases. Illincis Supreme Court Rule

412(j) provides that records, correspondence, reports, and

memoranda containing opinions, theories, or conclusions

of defense counsel, or his staff, are not subject to dis-

covery under the Supreme Court Rules. The People have

cited to the court the case of People v. Grier, 90 Il.

App. 3d 840, 413 N.E. 2d 1316 (1980), for the proposition

App. 10

that such reports are discoverable. However, a closer ex-

amination of the case of the People v. Grier, 90 IIl.

App. 3d 840, 413 N.E. 2d 1316 (1980), shows that the

court went to some length to avoid deciding the question

of pre-trial discovery of such documents; the court sim-

ply upheld the order of the trial court requiring defense

counsel to furnish to the People defense counsel’s reports

of interviews with defense witnesses, after such witnesses

had been called to testify on direct examination by the

defense, in order to facilitate the cross-examination of such

witnesses by the prosecution.

The court finds that the reports of Mr. Matens’ inter-

views with witnesses listed upon the People’s Motion for

Discovery certainly do not invade the private inner sanc-

tum of individual feeling and thought of the defendant and

that they are not privileged under the Fifth Amendment

to the Constitution of the United States. The court fur-

ther finds that to the extent such reports contain the opin-

ions, theories, or conclusions of Mr. Matens relative to

trial strategy or credibility of witnesses, such reports are

privileged from discovery under the work product excep-

tion in Supreme Court Rule 412 (j). To the extent that

such reports contain the statements of witnesses concern-

ing the alleged event, it appears that those portions of

such reports fall outside of the work product exception.

The court therefore concludes that certain portions of

Mr. Matens’ reports are constitutionally subject to discov-

ery by the opposition. However, the People must show

more than the possibility that some portions of the reports

are subject to discovery. They must show that they have

a legal right to discover those portions of the reports

which are not privileged. Ordinarily the right to discovery

flows from one or more of three sources: statutes, court

rules, or the inherent authority of the court.

+ ee as & aa ae D

ek ee

App. ll

The statutes of the State of Illinois do not provide for

discovery to be furnished by the defense to the People.

S.H.A. ch. 38, §114-9. However, Supreme Court Rule 413

does. It provides:

“Subject to constitutional limitations and within a

reasonable time after the filing of a written motion

by the State, defense counsel shall inform the State

of any defenses which he intends to make at a hear-

ing or trial and shall furnish the State with the

following materials and information within his posses-

sion or control:

(i)

(ii)

(e)

the names and last known addresses of per-

sons he intends to call as witnesses together

with their relevant written or recorded state-

ments, including memoranda reporting or sum-

marizing their oral statements, any record of

prior criminal convictions known to him; and

any books, papers, documents, photographs, or

tangible objects he intends to use as evidence

or for impeachment at a hearing or trial;

Upon a showing of materiality, and if the re-

quest is reasonable, the court in its discretion

may require disclosure to the State of relevant

material and information not covered by this

rule.” S.H.A. ch. 110A, § 413(d\iXiixe).

Supreme Court Rule 413(dXi) clearly does not relate to

the discovery of statements made by prosecution wit-

nesses. It would apply only to statements made by wit-

nesses on the People’s list whom the defense also intended

to call. If the defense intended only to cross-examine such

persons, when called as People’s witnesses, then the duty

to disclose their statements under Supreme Court Rule

413(dXi) would not come into play. However, Supreme

Court Rule 413(d\ii) does require production of papers or

documents the defense intends to use for impeachment

at trial.

App. 12

Moreover, the United States Supreme Court has recog-

nized the inherent authority of the Judicial Branch of the

government to require the defense to produce previous-

ly recorded statements of witnesses to assure the Peo-

ple of the full benefit of examination and cross-examination

of witnesses and to enhance the truth-finding process.

United States v. Nobles, 422 U.S. 225, 45 L. Ed. 2d 141,

95 S. Ct. 2160 (1975).

The court finds that Supreme Court Rule 413(dXii) and

(e) and the inherent authority of the judiciary to control

and regulate the administration of criminal justice both

furnish a proper basis upon which the right of the Peo-

ple to discover such reports may properly be founded.

Where the discoverable statements of witnesses and the

opinions, theories and conclusions of the defense counsel

and his agent are intertwined in the same decuments,

Supreme Court Rule 415(f) permits an in camera inspec-

tion by the court in order to separate the two types of

material from each other, and Supreme Court Rule 415(e)

authorizes excision of work product and other privileged

matter.

IT IS THEREFORE ORDERED by the court that the

defendant submit the reports of Mr. Matens of his inter-

_ views with the witnesses listed upon the prosecution’s

answer to the defendant’s Motion for Discovery to the

court for an in camera inspection for the purpose of deter-

mining whether any portion of the contents of those

reports are discoverable under the principles hereinabove

discussed on May 15, 1985.

DATED THIS 9th DAY OF MAY, 1985

/s/ William T. Caisley

JUDGE

App. 13

APPENDIX C

STATE OF ILLINOIS In The Circuit Court Of The

COUNTY OF LIVINGSTON—ss_ Eleventh Judicial Circuit

THE PEOPLE OF THE STATE OF ILLINOIS

vs. No. 84-CF-151

STANLEY BOCLAIR.

ORDER

Now come the defendant by counsel into Open Court

and presents the investigative notes of Tony Matens for

in camera inspection. And the court, having inspected the

notes of Mr. Matens, orders that the names of the per-

sons interviewed and the orange highlighted portions of

the interview be furnished by the defense to the prosecu.

tion as part of discovery prior to the start of trial.

DATED THIS 21st DAY OF MAY. 1985

/s/ William T. Caisley

JUDGE

App. 14

APPENDIX D

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, v.

STANLEY BOCLAIR, Defendant-Appellant.

Fourth District No. 4-85-0384

Reversed ‘and remanded.

Opinion filed December 12, 1985.—Rehearing denied

January 16, 1986.

Appeal from the Circuit Court of Livingston County;

the Hon. William T. Caisley, Judge, presiding.

John H. Mathias, Jr., and Joel T. Pelz, both of Jenner

& Block, of Chicago, for appellant.

Donald D. Bernardi, State’s Attorney, of Pontiac

(Robert J. Biderman and Gwendolyn Klingler, both of

State’s Attorneys Appellate Service Commission, of

counsel), for the People.

JUSTICE MORTHLAND delivered the opinion of the

court:

On November 1, 1984, an indictment charged defend-

ant Stanley Boclair with four counts of murder. The trial

court appointed the public defender to represent the de-

fendant, along with an investigator to assist defense coun-

sel. Subsequently, the public defender withdrew as counsel

and the court appointed the law firm of Jenner & Block

App. 15

to represent the defendant. The investigator continued to

assist the new defense counsel in preparing for trial.

Both the prosecution and the defense filed motions for

discovery. The People’s response to the defendant’s dis-

covery request ultimately produced the names of more

than 200 potential prosecution witnesses. Jenner & Block

attorney Joel T. Pelz, the defendant’s counsel, commenced

interviewing many of these prosecution witnesses with the

assistance of the court-appointed investigator. The State

had similarly requested the names of defense witnesses

along with “their relevant written or recorded statements,

including memoranda reporting or summarizing their oral

statements.” At a hearing on March 14, 1985, the State

expanded this discovery request to include “notes and

memoranda that are being prepared or taken during [de-

fense] interviews” of witnesses originally named by the

State. Defense counsel objected to this expanded request,

and a second hearing was held on March 28, 1985.

1. On May 9, 1985, the court ruled that pursuant to

“Supreme Court Rule 413(dXii) and (e) and the inherent

authority of the judiciary to control and regulate the ad-

ministration of criminal justice,” the State was entitled

to discover the interview notes. The court ordered defense

attorney Pelz to submit the reports for in camera inspec-

tion. The trial judge inspected the reports and highlighted

those portions which he believed were relevant and did

not contain impressions or characterizations of the in-

dividuals who were interviewed. The trial court then

ordered Pelz to turn over to the State’s Attorney the

highlighted portions of the reports. The court noted that

in reviewing the reports, it had no knowledge of what

might be impeaching material. Mr. Pelz refused to deliver

the notes to the prosecution, asserting they contained pro-

tected “work product” and were not discoverable by the

App. 16

prosecution under Supreme Court Rule 413 (87 Ill. 2d

R. 413). The trial court held attorney Pelz in contempt

of court, sentencing him to six days’ conditional discharge.

Mr. Pelz appeals from the contempt holding.

On appeal, Pelz reasserts his arguments that Supreme

Court Rule 413 does not require him to turn over the

investigator’s reports during pretrial discovery and that

the reports contain protected work product. In addition,

Pelz claims that forcing’‘him to turn over the reports

would violate his client’s rights of effective assistance of

counsel and due process. He also asserts that Rule 413

was enacted in violation of the separation of powers doc-

trine. We agree with the appellant that these reports are

work product. Likewise, they are not discoverable before

trial pursuant to Supreme Court Rule 413 under the facts

of this case. However, since the appellant did not raise

his constitutional arguments at the trial court, those issues

are not properly before this court and are waived. Peo-

ple v. Amerman (1971), 50 Ill. 2d 196, 279 N.E.2d 353.

2. Initially, we note that the supreme court rules on

discovery intend to supplant the trial court’s inherent

jurisdiction over the criminal justice process during the

pretrial stages. (People v. Grier (1980), 90 Ill. App. 3d 840,

413 N.E.2d 1316; see also Bruske v. Arnold (1969), 44

Ill. 2d 132, 254 N.E.2d 453.) Accordingly, the trial judge

has discretion to order pretrial discovery only as per-

mitted by supreme court rule. This inherent power could

not authorize the trial court order presently at issue.

We reject the argument that Supreme Court Rule 413

requires the investigator’s reports to be turned over upon

timely request. In relevant part, Rule 413 reads as fol-

lows:

App. 17

“(d) Defenses. Subject to constitutional limitations

and within a reasonable time after the filing of a writ-

ten motion by the State, defense counsel shall inform

the State of any defenses which he intends to make

at a hearing or trial and shall furnish the State with

the following material and information within his pos-

session or control:

(i) The names and last known addresses of per-

sons he intends to call as witnesses together with

their relevant written or recorded statements, in-

cluding memoranda reporting or summarizing their

oral statements, an[y] record of prior criminal con-

victions known to him; and

(ii) any books, papers, documents, photographs,

or tangible objects he intends to use as evidence or

for impeachment at a hearing or trial;

* * *

(e) Additional Disclosure. Upon a showing of ma-

teriality, and if the request is reasonable, the court

in its discretion may require disclosure to the State

of relevant material and information not covered by

this rule.” 87 Ill. 2d R. 413.

3. The trial court properly rejected application of sub-

section (dXi) in the present case, because the reports at

issue do not summarize statements of defense witnesses.

Nevertheless, the trial court did find that subsection

(dXii) of Rule 413 authorized discovery of the reports. This

determination was erroneous. The State contends, in es-

sence, that the “papers” referred to in subsection (d\ii)

include the reports at issue in this case. The State’s ar-

gument would interpret subsection (d\ii) as a “catchall”

provision—permitting discovery of items admittedly pre-

pared by the defense in anticipation of litigation, but

which do not qualify as expert’s reports under subsec-

tion (c), nor as defense witness statements under subsec-

App. 18

tion (dXi). (87 Ill. 2d R. 413(c), (dXi).) Giving “papers” the

broad definition which the State’s interpretation requires

ignores the existence of the subsection (e) ‘“‘catchall’’ pro-

vision. Moreover, such broad interpretation would vitiate

the work product doctrine as set forth in Supreme Court

Rule 412(j). We reject an interpretation with such far-

reaching consequences.

In the present context, ordering discovery under Rule

413 raises a further problem in that defense counsel as-

serts that these notes would not be used to impeach the

State’s witnesses. At most, counsel states, the notes will

be used to refresh the defense investigator’s recollection

if he testifies as an impeaching witness. Accordingly, the

notes would not be material intended to impeach prosecu-

tion witnesses as contemplated by Rule 413(d\ii).

Finally, we conclude that the trial court’s order does

not fall within its discretion to permit additional discovery

by the State under Rule 413(e). In interpreting the par-

allel catchall provision relating to discovery by the defense

(87 Ill. 2d R. 412(h)), the appellate court has noted that

this “discretionary provision was intended to have a small

scope.” (People v. Manley (1974), 19 Ill. App. 3d 365, 370,

311 N.E.2d 593, 597.) We believe the discretion provided

for in Rule 413(e) should also be given a limited reading.

‘The defense investigator’s reports do not contain factual

information not otherwise obtainable by the prosecution;

their only value is to cross-examine the defendant’s inves-

tigator should he take the stand. In the present case, the

sought-after reports will be irrelevant unless and until the

defendant’s investigator testifies to impeach one of the

State’s witnesses. Unless that juncture is reached, the

reports would merely give the State’s Attorney insight

into defense counsel’s approach to Stanley Boclair’s de-

fense. Although the trial court’s order may serve expendi-

App. 19

ency by permitting trial to continue without interruption

if the defendant’s investigator testifies, such considera-

tions should not permit otherwise prohibited discovery.

The State’s Attorney has access to each person the de-

fense has interviewed. He is not also entitled to use the

effort of defense counsel to shore up weaknesses in his

case or to uncover new avenues of inquiry. Acquiring the

relevant portions of these reports at trial will adequate-

ly preserve the State’s interest in answering impeachment

of prosecution witnesses.

4. We also agree with Pelz that the materials at issue

fall within the so-called work product privilege. Illinois

does not generally require either the State or the defense

to disclose its work product to the other before the trial.

Supreme Court Rule 412(jXi) prevents disclosure of ‘“‘rec-

ords, correspondence, reports or memoranda to the extent

that they contain the opinions, theories or conclusions of

the State or members of its legal or investigative staffs,

or of defense counsel or his staff.” (87 Ill. 2d R. 412G\i).)

This rule clearly protects a report written by a defense

investigator as if the defense attorney prepared the docu-

ment himself. See also People v. Knippenberg (1977), 66

Ill. 2d 276, 362 N.E.2d 681.

The investigator’s report at issue in the present case

is quite similar to the report at issue in Consolidation

Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 108, 432

N.E.2d 250. In Consolidation Coal, the Illinois Supreme

Court rejected the argument that notes and reports of

an attorney’s interviews with employees of his corporate

client were not protected under the work product doc-

trine simply because those notes contained primarily fac-

tual information. The supreme court found that “notes

regarding oral statements of witnesses, whether in the

form of attorney’s mental impressions or memoranda,

App. 20

necessarily reveal in varying degrees the attorney’s men-

tal processes in evaluating the communications. [Cita-

tions.]’’ (89 Ill. 2d 108, 109, 4832 N.E.2d 250, 253.) In the

present case, an investigator took notes of interviews con-

ducted under the direction of defense counsel. As in Con-

solidation Coal, these notes and subsequent reports in-

evitably reflect defense counsel’s evaluations and stra-

tegy—protection of which is the very heart of the work

product doctrine. Although Consolidation Coal addresses

discovery in the context of civil litigation, the concerns

that case addresses are even more acute in the context

of a criminal prosecution.

Likewise, the present case does not fall within the ex-

ception to the work product doctrine as expounded in

Consolidation Coal. Because an attorney’s notes and

memoranda might, “‘on rare occasions, constitute the only

source of factual material,” the supreme court determined

that an exception to the work product doctrine must be

made in such instances. (Consolidation Coal Co. v.

Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 111, 482 N.E.2d

250, 253.) In the present case, we are dealing with inter-

views of State witnesses. Presumably, the prosecution has

as much, if not more, access to any information these wit-

nesses have. Moreover, the State’s primary interest in

- these reports is assertedly for their impeachment value

should the defendant’s investigator take the stand. We

are not persuaded that these reports fall within the nar-

row exception to the work product doctrine permitting

discovery of factual matters unavailable from other

sources.

5. Despite our determination that the work product

doctrine protects the reports at issue from pretrial dis-

covery, the trial court may order them turned over to

the prosecution should the defense use the investigator’s

App. 21

testimony to impeach State witnesses. If the defendant’s

investigator testifies to impeach prosecution witnesses, the

defendant will have waived the protection of the work

product rule and may be required to turn over to the

State any portion of these reports relevant to cross-

examining the investigator. (United States v. Nobles

(1975), 422 U.S. 225, 45 L. Ed. 2d 141, 95 S. Ct. 2160;

People v. Grier (1980), 90 Ill. App. 3d 840, 413 N.E.2d

1316.) The defendant recognizes this rule and offers, in

his brief before this court, to turn over any relevant

materials if his investigator testifies to impeach State

witnesses.

We find no merit in the State’s contention that fairness

or reciprocity requires defense counsel to turn over his

investigator’s reports before trial. Supreme Court Rule

413 provides liberal discovery privileges to the prose-

cution, and we see no reason to enhance those rights

under the circumstances of this case. Moreover, even if

the State’s discovery rights do not precisely parallel those

of the defendant, any tilt of the balance toward the de-

fense accords with the notion that the prosecutor repre-

sents all the people of Illinois including the defendant,

while defense counsel is advocate only for his client. The

State’s primary goal must be justice, while defense coun-

sel looks primarily to his client’s interests.

Similarly, we do not face a situation like that presented

to the supreme court in Williams v. Florida (1970), 399

U.S. 78, 26 L. Ed. 2d 446, 90 S. Ct. 1893. In Williams,

the high court upheld a Florida rule requiring the defen-

dant to inform prosecutors if an alibi defense was antici-

pated, name the place defendant claimed to have been,

and provide names and addresses of defense alibi wit-

nesses. The alibi defense is distinguishable from the

reports at issue here by the ease with which a defendant

App. 22

can fabricate an alibi. Likewise, unless the defendant

discloses his alibi witnesses, the State has no access to

such information. By contrast, the information which the

prosecution seeks in the present case is available without

the defendant’s cooperation since it comes from witnesses

whom the State originally identified. Although the efforts

of defense counsel might provide a short cut for the pros-

ecution’s investigators, simple efficiency is not enough to

justify compelling this discovery.

For the foregoing reasons, the contempt citation of

Joel T. Pelz is reversed and the cause remanded for fur-

ther proceedings.

Reversed and remanded.

WEBBER and SPITZ, JJ., concur.

POS ee ee re ne

App. 23

APPENDIX E

STATE OF ILLINOIS

SUPREME COURT CLERK

SUPREME COURT BUILDING

SPRINGFIELD 62706

Juleann Hornyak First District Office

Clerk of the Court Room 30-129 .

(217) 782-2035 Richard J. Daley Cente

Chicago 60602

(312) 793-1332

February 20, 1987

[No. 63132—People State of Illinois, appellant, v. Stanley

Boclair, appellee. Appeal, Appellate Court,

Fourth District.]

The mandate(s) of this Court will issue to the Appellate

Court, Circuit Court or other Agency on March 20, 1987,

unless a petition for rehearing (due March 13, 1987) or

motion to stay the mandate is timely filed. Supreme Court

Rule 368.

App. 24

APPENDIX F

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

March 30, 1987

Mr. Joel T. Pelz

Jenner and Block

One IBM Plaza

Chicago, IL 60611

No. 63132—People State of Illinois, appellant, v. Stanley

Boclair, appellee. Appeal, Appellate Court,

Fourth District.

The Supreme Court today DENIED the petition for

rehearing in the above entitled cause.

Simon, J., took no part.

The mandate of this Court will issue to the appropriate

Appellate Court and/or Circuit Court or other agency on

- April 9, 1987.

i -

App. 25

APPENDIX G

IN THE SUPREME COURT OF ILLINOIS

PEOPLE OF THE STATE OF

ILLINOIS,

Plaintiff,

v.

STANLEY BOCLAIR,

Defendant.

No. 63132

me mee ee ee ee ee ee See ee

NOTICE OF APPEAL TO THE

SUPREME COURT OF THE UNITED STATES

Notice is hereby given that Stanley Boclair, the defen-

dant above-named, hereby appeals to the Supreme Court

of the United States from the final judgment of the

Supreme Court of Illinois entered on February 20, 1987,

rehearing of which was denied on March 30, 1987, which

reversed the decision of the Illinois Appellate Court in

People v. Boclair, 139 Ill. App. 3d 350, 487 N.E.2d 969

(1985), and reinstated the trial court’s civil contempt cita-

tion.

This appeal is taken pursuant to 28 U.S.C. § 1257(2).

Jerold S. Solovy /s/ Barry Sullivan

John H. Mathias, Jr. One of the Attorneys for

Barry Sullivan Defendant Stanley Boclair

Joel T. Pelz

Jeffrey T. Shaw

JENNER & BLOCK

One IBM Plaza Filed

Chicago, Illinois 60611 May 26, 1987

(312) 222-9350 Supreme Court Clerk

App. 26

CERTIFICATE OF SERVICE

I, Barry Sullivan, a member of the Bar of the Supreme

Court of the United States, certify that I have served

the foregoing Notice of Appeal to the Supreme Court of

the United States by depositing it in a United States mail-

box at One IBM Plaza, Chicago, Illinois 60611 on May 20,

1987, with first class postage prepaid, to the following:

Neil F. Hartigan

Attorney General, State of Illinois

Roma J. Stewart

Solicitor General, State of Illinois

Mark L. Rotert

Scott Graham

Assistant Attorneys General

100 W. Randolph Street, 12th Floor

Chicago, Illinois 60601

Donald D. Bernardi

State’s Attorney for Livingston County

Livingston County Courthouse

Pontiac, Illinois 61764

Judith Cremer

Clerk of the Circuit Court

Livingston County Courthouse

Pontiac, Illinois 61764

I further certify that all parties required to be served

have been served.

/s/ Barry Sullivan

Barry Sullivan

App. 27

APPENDIX H

No. 63132

IN THE

SUPREME COURT OF [ILLINOIS

People State of Illinois,

Appellant ) Appellate Court

Ve ) Fourth District

Stanley Boclair, 4-85-0384

Appellee )

ORDER

This matter has come for consideration upon the mo-

tion of Appellee to stay the mandate of this Court pend-

ing appeal or application for certiorari in the United

States Supreme Court.

IT IS ORDERED that the mandate of this Court in

the above cause is stayed nending the filing of a notice

of appeal or an application for certiorari or the expira-

tion of the period within which said application or notice

may be filed. If certiorari is applied for or notice of ap-

peal filed, the mandate of this Court shall, upon proof of

such filing being made by affidavit filed with the clerk

of this Court, be further stayed pending resolution by the

United States Supreme Court of such application or ap-

peal. If no such affidavit is filed, the mandate shall, with-

out further order, issue upon the expiration of the time

within which appeal or certiorari may be sought.

Ben Miller

Justice, Supreme Court of Illinois

Entered: April 14, 1987