People v. Boston , 2016 IL 118661 ( 2016 )

Illinois Official Reports Digitally signed by
Reporter of Decisions
Reason: I attest to the
accuracy and integrity of
this document
Supreme Court Date: 2016.04.04 11:56:48
-05'00'
People v. Boston, 2016 IL 118661Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. JERRY
Court: BOSTON, Appellant.
Docket No. 118661
Filed February 26, 2016
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County; the Hon.
Arthur F. Hill, Jr., Judge, presiding.
Judgment Appellate court judgment affirmed.
Counsel on Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg and
Appeal Patricia Mysza, Deputy Defenders, and Sarah J. Curry, Assistant
Appellate Defender, of the Office of the State Appellate Defender, of
Chicago, for appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
State’s Attorney, of Chicago (Alan J. Spellberg and Jeffrey W. Allen,
Assistant State’s Attorneys, of counsel), for the People.
Justices 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.”
¶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.
-2-
¶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 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.
1
A different grand jury indicted defendant than granted the subpoena.
-3-
¶ 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.
¶ 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.
-4-
¶ 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 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
-5-
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 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
-6-
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 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.
¶ 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
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.
-7-
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 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.
-8-
¶ 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.
¶ 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).
¶ 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,
-9-
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).
¶ 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.
- 10 -