People v. Boston , 2016 IL 118661 ( 2016 )

2016 IL 118661
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 118661)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JERRY
BOSTON, Appellant.
Opinion filed February 26, 2016.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, and Karmeier
concurred in the judgment and opinion.
Justice Burke dissented, with opinion.
OPINION
¶1 This appeal arises from the first degree murder conviction of defendant, Jerry
Boston, for the 1997 killing of his former girlfriend, Tonya Pipes. Defendant was
charged in 2005 with the murder after a bloody palm print discovered at the crime
scene was shown to match defendant’s palm print which was obtained by the State
through a grand jury subpoena. The circuit court of Cook County denied
defendant’s motion to quash the subpoena and suppress the palm print evidence,
and the appellate court affirmed. 2014 IL App (1st) 111489-U, ¶ 66. For the reasons
that follow, we also affirm.
¶2 BACKGROUND
¶3 On August 25, 1997, Pipes was found dead in her Chicago apartment with the
upper portion of her body submerged in a bathtub which was dark with blood. A
beer bottle and two knives were floating in the water. Pipes sustained multiple stab
wounds to her neck and head, and semen was discovered on vaginal swabs taken
during an autopsy. There was no evidence that she had been raped. Above the
bathtub, there was a palm print left in Pipes’s blood. The police cut out a piece of
the wallboard with this print for analysis. The crime remained unsolved for years.
¶4 In April 2004, the State was investigating the cold case and appeared before a
grand jury requesting the issuance of a subpoena. At the proceeding, Assistant
State’s Attorney LuAnn Snow (ASA Snow) informed the grand jury as follows:
“The Grand Jury has the right to subpoena and question any person against
whom the State’s Attorney is seeking a Bill of Indictment, or any other person,
and to obtain and examine any documents or transcripts relevant to the matter
being prosecuted by the State’s Attorney.
I am asking for approval of a John Doe first degree murder subpoena under
Grand Jury Number April 195. What we are asking for is the Illinois
Department of Corrections, through one of the fingerprint technicians, [to] take
palm prints and fingerprints of Jerry Boston, who is currently incarcerated at
the Illinois Department of Corrections on a life sentence. He was the
ex-boyfriend of a woman who was killed back in 1997, and the police have
received information that he may be involved in her killing.
There is an unidentified palm print on the wall next to where the victim was
found, so they want to get his palm prints. Palm prints are different from
fingerprints. Everyone arrested gets fingerprinted, but not necessarily palm
printed.”
¶5 After deliberating, the grand jury granted the subpoena. The subpoena was
directed to the Illinois Department of Corrections instructing that it take a complete
set of palm prints and fingerprints from defendant. The subpoena stated that
“[c]ompliance with this subpoena may be made by tendering such items to ASA
SNOW, or the Cook County Investigator serving the subpoena as an agent of the
Cook County Grand Jury.”
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¶6 On April 16, 2004, Chicago police sergeant William Whalen and Detective
Luis Munoz served defendant with the subpoena at Menard Correctional Center.
After a set of palm prints and fingerprints were taken from defendant by an
employee of the prison, the police delivered the prints to the Illinois State Police
crime lab.
¶7 On May 4, 2004, Munoz secured a search warrant from a judge for defendant’s
DNA. After the DNA sample was collected, police submitted a request to compare
defendant’s DNA with the semen discovered on the vaginal swab taken during
Pipes’s autopsy. The test showed that the male DNA profile extracted from the
semen recovered from the vaginal swab was consistent with having originated from
defendant.
¶8 On July 12, 2005, the State again appeared before the grand jury. The State
introduced the testimony of Whalen who testified that defendant’s palm print
matched the one discovered at the apartment where Pipes was found dead. He
further testified that defendant’s DNA matched seminal fluid discovered in Pipes’s
vagina. The State sought a bill of indictment against defendant for Pipes’s murder,
which the grand jury granted. 1 At the time, defendant was serving a natural life
sentence on an unrelated armed robbery conviction.
¶9 Prior to trial, defendant filed a motion to quash the subpoena and suppress the
palm print evidence. He argued that the State improperly used the grand jury to
obtain the subpoena and to supplement a police investigation. Defendant asserted
that the State violated his fourth amendment rights, and his rights under the Illinois
Constitution, by seeking a grand jury subpoena rather than a search warrant from a
judge. Defendant further argued that the State violated grand jury procedures by
failing to return the fingerprint card to the grand jury. Defendant argued that any
evidence seized as a result of the subpoena must therefore be suppressed.
¶ 10 The trial court denied the motion. Concerning defendant’s constitutional
claims, the trial court found that the information given to the grand jury was
sufficient and particularized enough to prevent the court from quashing the
subpoena. The trial court held that the subpoena was “predicated on what [it]
believe[d] to be a particularized request by [the State] *** that a hand print or palm
print be taken from the ex-boyfriend of a murder victim from 1997.” With respect
to the grand jury process, the trial court recognized that there was nothing in the
1
A different grand jury indicted defendant than granted the subpoena.
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record to indicate that when the grand jury issued the subpoena that it was asked to
grant agency powers, or that it had granted the assistant State’s Attorney agency
powers. The trial court noted that the procedures before the grand jury were
“[e]xtremely sloppy” and did not “comport with all dictates of procedure that [it]
would expect in terms of conduct in front of the grand jury.” The trial court further
held that when the State subsequently appeared before the grand jury seeking the
indictment, its appearance did not amount to a return of the subpoena to the grand
jury. The trial court concluded, however, that the issue of prejudice weighed
heavily against defendant and emphasized that his liberty interest was greatly
restricted due to his status as an incarcerated felon. Given the totality of the
circumstances, the trial court held that it would be improper to suppress the palm
print evidence.
¶ 11 At the jury trial in December 2009, among other evidence, the State presented
the DNA and palm print evidence. Several witnesses testified, including Randy
Cook, defendant’s cellmate from June 25 to July 10, 2008. Cook testified that
defendant confided in him about the murder. Defendant told him that Pipes went
into the bathroom while he was in the tub and the two got into an argument about
defendant’s drugs. Defendant snapped and began hitting and stabbing her.
¶ 12 The jury found defendant guilty of first degree murder. He was sentenced to
natural life in prison.
¶ 13 The appellate court affirmed. 2014 IL App (1st) 111489-U, ¶ 66. The appellate
court rejected defendant’s claim that the State lacked individualized suspicion to
support the subpoena issued by the grand jury. Id. ¶ 26. The appellate court held
that in light of defendant’s limited expectation of privacy as an incarcerated felon,
together with the information presented by the State in support of the subpoena,
defendant’s rights under the fourth amendment were not violated. Id. The appellate
court held that a grand jury’s subpoena power may not be used to further
independent investigations by the police or the prosecutor. Id. ¶ 29. The appellate
court found, however, that the request for the subpoena in this case allowed the
assistant State’s Attorney, and the investigator serving the subpoena, to act as
agents of the grand jury. Id. Additionally, the appellate court held that while the
palm prints had not been returned to the grand jury before being submitted to the
crime lab, the State and investigators assigned to this case could have still obtained
that evidence from the grand jury. Id. ¶ 30. Consequently, the appellate court
concluded that defendant was not prejudiced by any improper procedures. Id.
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¶ 14 This court allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315
(eff. Jan. 1, 2015).
¶ 15 ANALYSIS
¶ 16 I
¶ 17 Before this court, defendant again challenges the propriety of the trial court’s
denial of his motion to suppress the palm print evidence.
¶ 18 When reviewing a trial court’s ruling on a motion to suppress evidence, we
apply the two-part test adopted by the Supreme Court in Ornelas v. United States,
517 U.S. 690, 699 (1996). People v. Gaytan, 2015 IL 116223, ¶ 18. First, we will
uphold the trial court’s factual findings unless they are against the manifest weight
of the evidence. Id. Second, we review de novo the trial court’s ultimate legal
conclusion as to whether suppression is warranted. Id. The relevant facts in this
case are not in dispute. Our analysis therefore focuses on the correctness of the trial
court’s legal conclusion that the palm print evidence obtained by the State via the
grand jury subpoena should not be suppressed.
¶ 19 This court has long recognized that the grand jury is an integral part of the
court, and the court has the inherent power to supervise and prevent perversion of
the grand jury’s process. In re May 1991 Will County Grand Jury, 152 Ill. 2d 381,
393 (1992) (citing People v. Sears, 49 Ill. 2d 14, 35-36 (1971)). “The purpose of a
grand jury investigation is both to exonerate individuals under suspicion of having
committed a crime (People v. Rodgers (1982), 92 Ill. 2d 283, 289) and to establish
the probable cause necessary for the arrest of suspected felons (Phillips v. Graham
(1981), 86 Ill. 2d 274, 284).” Id. at 392.
¶ 20 This court has also found that “the public also has an interest in maintaining the
breadth of the grand jury’s power to conduct investigations necessary to ferret out
criminal activity.” People v. Florendo, 95 Ill. 2d 155, 158 (1983). A specific charge
need not be pending as a condition of the grand jury’s right to issue a subpoena.
Will County, 152 Ill. 2d at 392-93 (citing People v. Allen, 410 Ill. 508, 517 (1951)).
“[S]uch a requirement would unduly trammel its investigation.” Id. at 392.
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¶ 21 Consistent with the purpose of maintaining the grand jury’s power to conduct
investigations, section 112-4(b) of the Code of Criminal Procedure of 1963 (Code)
provides, in relevant part:
“(b) The Grand Jury has the right to subpoena and question any person
against whom the State’s Attorney is seeking a Bill of Indictment, or any other
person, and to obtain and examine any documents or transcripts relevant to the
matter being prosecuted by the State’s Attorney.” 725 ILCS 5/112-4(b) (West
2012).
“[S]ection 112-4, in confirming the grand jury’s power to subpoena any person,
also gives the grand jury the right to demand that the person subpoenaed provide
evidence within the limitations imposed by constitutional guarantees of individual
rights.” Will County, 152 Ill. 2d at 389. Section 112-6(c)(1) of the Code further
provides that a disclosure of matters occurring before the grand jury, which would
otherwise be prohibited by this section, may be disclosed to the State’s Attorney for
use in the performance of his duty and such government personnel as are deemed
necessary by the State’s Attorney in the performance of his duty to enforce state
criminal law. 725 ILCS 5/112-6(c)(1) (West 2012).
¶ 22 Defendant relies upon Will County and In re Rende, 262 Ill. App. 3d 464
(1993), for the proposition that the requirements for the issuance of a grand jury
subpoena were not met in this case.
¶ 23 In Will County, the grand jury issued subpoenas for two individuals who did not
have any pending charges filed against them. Will County, 152 Ill. 2d at 385. One of
the individuals was required by subpoena to provide palm prints and fingerprints. Id.
For both individuals, the subpoenas required them to appear in a lineup and submit
blood and hair samples. Id. This court considered whether there were any statutory
or constitutional limitations on the grand jury’s power to gather such physical
evidence through the subpoenaing of witnesses. Id. at 388-89. We found no
statutory bar that would prevent a grand jury from issuing such a subpoena. Id. at
388.
¶ 24 We then turned to whether a grand jury subpoena for noninvasive, as well as
invasive, physical evidence was constitutionally permissible. Id. at 389. We
recognized that both the United States Constitution (U.S. Const., amend. IV) and
the Illinois Constitution (Ill. Const. 1970, art. I, § 6) prohibit searches and seizures
which are unreasonable. Will County, 152 Ill. 2d at 389-90. We acknowledged that
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the Court, in United States v. Dionisio, 410 U.S. 1 (1973), held that an individual
has no reasonable expectation of privacy in those physical characteristics which are
commonly exposed to the public such as facial features and voice exemplars. Will
County, 152 Ill. 2d at 389-90. Consequently, in the context of a grand jury
subpoena for such evidence, the Court held that no preliminary showing of
reasonableness is required to collect such evidence. Id. We therefore recognized in
Will County that under the fourth amendment, no preliminary showing of
reasonableness is required prior to the issuance of a grand jury subpoena for
noninvasive physical evidence, which includes palm prints. Id. at 390.
¶ 25 This court further held that the Illinois Constitution goes beyond federal
constitutional guarantees and expressly recognizes a zone of personal privacy. Id.
at 391. We found that our state constitution provides broader protection from
unreasonable intrusions than the fourth amendment. Id. We held that once a right to
privacy is established, it is incumbent on us to balance the interest of the individual
in maintaining his privacy against the interest of the public in preserving the
effectiveness of the grand jury. Id. at 392. This court instructed that where physical
evidence of an invasive nature is sought, such as hair or blood samples, probable
cause must be shown. Id. at 399-400. However, with regard to noninvasive physical
evidence, such as palm prints or fingerprints, we held that under the Illinois
Constitution, “some showing of individualized suspicion as well as relevance must
be made” before a subpoena for such evidence may be issued. Id. at 393. We stated
that this may be done through affidavit by the State’s Attorney. Id.
¶ 26 Concerning the individualized suspicion requirement, we provided, as an
example, an investigation where an Asian man was alleged to have committed a
rape. Id. We stated that it would be improper to subpoena physical evidence from
all 50 Asian men living in the community, none of whom was suspect for reasons
other than his race. Id. In explaining the relevancy requirement, we held that “[a]
brief statement of the nature of the investigation would satisfy that requirement.”
Id. Because the State had not provided any evidence of relevance or individualized
suspicion in Will County, we concluded that the subpoenas must be quashed. Id. at
393-94.
¶ 27 In Rende, the only representations made by the assistant State’s Attorney to the
grand jury was an unsworn statement identifying the crimes being investigated and
claiming that the State had “ ‘information that [the defendant] may be a subject
of—target of the investigation.’ ” Rende, 262 Ill. App. 3d at 469. The assistant
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State’s Attorney did not identify the source of this information and did not
positively assert that defendant was a target. Id. The appellate court concluded that
this did not provide sufficient assurances that the request was not part of a general
dragnet, rather than a request based on some unique knowledge pertaining to the
defendant’s involvement in the crimes. Id. at 469-70. For these reasons, the
appellate court, following our instruction in Will County, held that the grand jury
did not possess sufficient individualized suspicion to issue a subpoena to compel
the defendant to submit to a lineup for identification purposes. Id.
¶ 28 In this case, defendant does not dispute, nor could he, that the palm print
evidence was relevant. Instead, relying upon Will County and Rende, he argues that
the State lacked the requisite individualized suspicion to support the issuance of the
subpoena because ASA Snow’s statement to the grand jury was based merely on a
“hunch” and provided no real evidence which implicated him in Pipes’s murder.
¶ 29 In marked contrast to the instant case, the subpoena in Will County was quashed
after the State failed to provide any evidence of relevance or individualized
suspicion to support the subpoenas. Similarly, in Rende, the subpoena was simply
supported by testimony from the assistant State’s Attorney that the defendant “may
be a subject” of the investigation. Here, ASA Snow informed the grand jury in 2004
as follows: the police were investigating a 1997 murder; defendant was the
ex-boyfriend of the victim; police had received information that defendant may be
involved in the killing; there was an unidentified palm print left on the wall next to
where the victim was found; defendant was currently incarcerated on a life
sentence; and police wished to compare defendant’s print to the one left at the
scene. We recognize that the assistant State’s Attorney failed to provide an affidavit
to the grand jury. There is no allegation, however, that a false statement was
somehow made by the State to the grand jury.
¶ 30 There is no basis for us to conclude, as urged by defendant, that this was
somehow a “rogue police investigation” based merely on a “hunch.” The police
were investigating a brutal crime that occurred almost seven years prior and had
received information that defendant may be involved in the killing. The victim was
murdered in her apartment and the particular evidence at issue was sought by the
State from defendant as her former boyfriend. The State’s request did not entail the
type of “dragnet” about which we expressed concern in Will County. For these
reasons, we find the information provided by the State to the grand jury was
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sufficiently tied to defendant to hold that there was individualized suspicion to
warrant the grand jury subpoena. 2
¶ 31 II
¶ 32 Defendant also argues that the trial court should have suppressed the palm print
evidence because the State improperly used the grand jury’s subpoena power and
violated grand jury procedures.
¶ 33 Defendant initially claims that the State abused the grand jury’s subpoena
power because it only sought the subpoena after an assistant State’s Attorney
determined that there was lack of probable cause. However, as we have explained,
probable cause for a grand jury subpoena need not be shown where physical
evidence of a noninvasive nature is sought and palm print evidence falls into that
category. Moreover, this claim is mere speculation and cannot be established in the
record. Defendant supports his claim by simply citing to the factual background of
his own pretrial motion to suppress. See People v. Barner, 2015 IL 116949, ¶ 69
n.4 (holding that we cannot rely upon a factual representation made in the
background section of a party’s own motion which cannot be independently
established in the record).
¶ 34 Additionally, defendant claims that grand jury procedures were violated
because the grand jury was not investigating the victim’s murder when it was asked
to issue the subpoena, and its authority was misused to further an independent
police investigation. Defendant also contends that the State misused the grand jury
process to obtain his palm prints because the subpoena was not made returnable to
the grand jury, and once acquired, the prints were taken to the crime lab and not
returned to the grand jury.
¶ 35 The State claims that its procedures before the grand jury were proper and that
ASA Snow and the detectives were working on behalf of the grand jury to assist in
their investigative function when the prints were taken to the crime lab for
comparison.
2
Defendant’s status as an incarcerated felon did not factor into our determination that there was
sufficient individualized suspicion to warrant the grand jury subpoena. Consequently, there is no
need for us to consider defendant’s claim that his status did not diminish his right to privacy because
the State was investigating an offense unrelated to that for which he was incarcerated.
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¶ 36 We find our decision in People v. Wilson, 164 Ill. 2d 436 (1994), a capital case
relied upon by both parties, to be controlling of the issue before us. In Wilson,
defense counsel filed a pretrial motion in limine seeking to preclude, in pertinent
part, the use of statements that the defendant had made to Julie Rice of the McLean
County Center for Human Services. Id. at 455. The trial court denied the motion
in limine. Id.
¶ 37 Among other issues raised on appeal, the defendant claimed that the State’s
Attorney had abused the grand jury’s subpoena power to obtain Rice’s records. Id.
at 457. The defendant relied upon the fact that the subpoena was not prepared at the
direction of the grand jury, but at the direction of the State’s Attorney; the records
were made returnable to the State’s Attorney’s office rather than the grand jury; and
the records were not shown to the grand jury. Id. The State’s Attorney claimed that
he acted “ ‘in anticipation of the grand jury’s consideration of matters under
investigation’ ” when issuing the subpoenas. Id.
¶ 38 This court instructed that grand jury subpoenas are returnable to the grand jury,
similar to how a witness, who is subpoenaed by the grand jury, must report to the
grand jury. Id. at 458. We further recognized that the grand jury has the power to
disclose subpoenaed documents to the State’s Attorney for the purpose of
furthering his or her responsibility of enforcing the law. Id. Although the State’s
Attorney has the statutory power to subpoena documents, those documents should
be made returnable to the court, so the court can determine relevance and
materiality, privilege, and whether the subpoena is unreasonable or oppressive
before the State’s Attorney has access to the material. Id.
¶ 39 In Wilson, we found that the State’s Attorney had misused the grand jury
process in obtaining the subpoenas, by substituting his authority to obtain
subpoenas for that of the grand jury and by not requiring that the documents be
returnable to the grand jury. Id. We ultimately held, however, that if the proper
procedures had been followed, the State’s Attorney could still have received the
documents from the grand jury. Id. Consequently, we found that the defendant was
not prejudiced by the process used to obtain his mental health records and the
documents were properly admitted at trial. Id.
¶ 40 Here, we agree with the trial court that the State was “sloppy” in certain
procedures that it followed before the grand jury and it should not be repeated.
Similar to Wilson, the subpoena in this case was not prepared at the direction of the
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grand jury but, rather, at the direction of the State’s Attorney. Additionally, the
prints were made returnable to ASA Snow, or the Cook County investigator serving
the subpoena purportedly as an agent of the grand jury, rather than the grand jury
itself. As the trial court correctly concluded, there is nothing in the record to
indicate that when the grand jury issued the subpoena that it was asked to grant
agency powers, or that it had granted ASA Snow or the police detectives agency
powers.
¶ 41 None of the case law relied upon by defendant informs our decision because he
fails to articulate how he was prejudiced. In this case, we recognize that the palm
prints were never returned to the grand jury. Instead, the grand jury that indicted
defendant heard evidence from police that the palm print discovered at the crime
scene matched defendant’s. Pursuant to section 112-6(c)(1) of the Code (725 ILCS
5/112-6(c)(1) (West 2012)), however, the grand jury could have disclosed the palm
print evidence to the State for purposes of sending it to the crime lab for testing.
Therefore, even if the palm prints had been returned to the grand jury before being
submitted to the crime lab, the State could have still obtained that evidence under
the Code from the grand jury for testing. Consistent with Wilson, there is no basis
for us to disturb the trial court’s holding because defendant has not shown that he
was prejudiced in any way by the grand jury process employed by the State to
obtain the palm prints.
¶ 42 CONCLUSION
¶ 43 For these reasons, we affirm the judgment of the appellate court which affirmed
the judgment of the circuit court denying defendant’s motion to quash the subpoena
and suppress the palm print evidence.
¶ 44 Appellate court judgment affirmed.
¶ 45 JUSTICE BURKE, dissenting:
¶ 46 I strongly disapprove of the State’s Attorney’s failure to follow the procedures
that govern the grand jury subpoena process and must, for this reason, respectfully
dissent.
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¶ 47 “A grand jury is organized for the purpose of protecting citizens from
unfounded accusation as well as investigating charges of crime and returning
indictments thereon.” People v. Munson, 319 Ill. 596, 604 (1925). See also
Branzburg v. Hayes, 408 U.S. 665, 686-87 (1972). A grand jury is an integral part
of our court system and serves an important constitutional function as a check on
prosecutorial power. People v. Sears, 49 Ill. 2d 14, 35-36 (1971). “The grand jury
has always occupied a high place as an instrument of justice in our system of
criminal law—so much so that it is enshrined in the Constitution.” United States v.
Sells Engineering, Inc., 463 U.S. 418, 423 (1983). It is “a protector of citizens
against arbitrary and oppressive governmental action.” United States v. Calandra,
414 U.S. 338, 343 (1974).
¶ 48 Through the Code, our legislature has set forth the powers and duties of the
grand jury and prosecutor. Section 112-4(a) of the Code provides that the grand
jury “shall hear all evidence presented by the State’s Attorney.” 725 ILCS
5/112-4(a) (West 2012). On the basis of evidence heard, the grand jury is
authorized to issue subpoenas (725 ILCS 5/112-4(b) (West 2012)), including a
subpoena requiring an individual to provide physical evidence, as long as the taking
of the evidence is within the limitations imposed by constitutional guarantees. In re
May 1991 Will County Grand Jury, 152 Ill. 2d 381, 388-89 (1992).
¶ 49 Grand jury proceedings are secret (725 ILCS 5/122-6 (West 2012)), and this
secrecy is “ ‘fundamental to our criminal procedure.’ [Citation.]” People v. Leavitt,
2014 IL App (1st) 121323, ¶ 56. Because of the secrecy of grand jury proceedings,
subpoenas issued by a grand jury are returnable to the grand jury only. People v.
Wilson, 164 Ill. 2d 436, 458 (1994). In this way, the grand jury may prevent the
disclosure of information or evidence that is irrelevant or immaterial, privileged, or
the fruit of unreasonable or oppressive demands. Id.
¶ 50 Pursuant to section 112-6 of the Code, the grand jury, and the grand jury alone,
has the power to disclose any evidence returned to it by means of a subpoena, to the
State’s Attorney, as well as such government personnel as the State’s Attorney
deems necessary to further performance of the State’s Attorney’s duty to enforce
criminal laws. 725 ILCS 5/112-6(c)(1) (West 2012). If any information or evidence
is disclosed to any government personnel, the State’s Attorney is required by law to
promptly provide the court that empanelled the grand jury with the names of such
persons to whom disclosure is made. 725 ILCS 5/112-6(c)(2) (West 2012).
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¶ 51 In this case, the procedures that govern grand jury proceedings were violated in
numerous ways. ASA Snow did not offer “evidence” to the grand jury in support of
issuing the subpoena but, rather, provided only her own unsworn statement. The
subpoena that was issued states that ASA Snow had been designated “an agent of
the Cook County Grand Jury.” However, as the circuit court below pointed out, the
transcript of proceedings before the grand jury shows that the subject of making
ASA Snow an agent was never raised at any time. Furthermore, the subpoena was
not made returnable to the grand jury but was, instead, made returnable to ASA
Snow or the Cook County investigator serving the subpoena. Not only was this a
violation of this court’s decision in Wilson, it also thwarted any involvement of the
grand jury. In addition, even though the subpoena was made returnable to ASA
Snow, it was not returned to her. Instead, the palm print was sent directly to the
Illinois State Police crime lab. Finally, in violation of section 112-6(c)(2), ASA
Snow did not promptly advise the court that the palm print had been sent to the
crime lab.
¶ 52 Relying on Wilson, the majority holds that defendant has failed to show any
prejudice resulting from the numerous violations that occurred here and, therefore,
the errors were harmless. I cannot agree with this result. This was not simply a
matter of “ ‘sloppy’ ” procedure (supra ¶ 40). Rather, what occurred in this case
was a complete breakdown of the procedures governing the grand jury process.
¶ 53 State’s Attorneys have a duty to comport themselves in a manner which
“inspires respect for the administration of justice.” People v. Lyles, 106 Ill. 2d 373,
412 (1985). As the United States Supreme Court has stated, prosecuting attorneys
are:
“the representative not of an ordinary party to a controversy, but of a
sovereignty whose obligation to govern impartially is as compelling as its
obligation to govern at all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done. As such,
he is in a peculiar and very definite sense the servant of the law, the twofold aim
of which is that guilt shall not escape or innocence suffer. He may prosecute
with earnestness and vigor—indeed, he should do so. But, while he may strike
hard blows, he is not at liberty to strike foul ones. It is as much his duty to
refrain from improper methods *** as it is to use every legitimate means ***.”
Berger v. United States, 295 U.S. 78, 88 (1935).
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¶ 54 The grand jury process is fundamental to our criminal procedure and our
system of justice. The complete breakdown in the grand jury procedures that
occurred in this case undermined the integrity of our judicial process. For this
reason, I would hold that defendant’s motion to suppress should have been granted.
I would reverse defendant’s conviction and remand for a new trial.
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