APPEAL from the Circuit Court of Cook County; the Hon. WALTER
P. DAHL, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 27, 1967.
The defendants, Richard Cain, James Donnelly and John Chaconas, together with one William Witsman were indicted by the grand jury of the circuit court of Cook County for the crime of conspiracy to commit perjury by testifying falsely before the grand jury. At a joint trial by jury the defendants were found guilty, but the jury was unable to reach a verdict as to Witsman. The defendants were each sentenced to the penitentiary for a term of not less than one nor more than three years.
The testimony before the grand jury arose out of an investigation of a burglary of the Zahn Drug Company in which a large quantity of drugs was stolen. A portion of the stolen merchandise was later recovered from a room at the Caravelle Motel and it was this recovery which was the subject of the defendants' testimony before the grand jury. Although the burglary and recovery are not directly involved in this case, some discussion of these events is necessary.
The defendants were members of a special investigations unit of the Cook County sheriff's office. Cain was chief of the unit, Donnelly was a lieutenant, and Chaconas was a detective. The burglary of the drug company occurred over the weekend of October 5, 1963. On January 6, 1964, between noon and 1 P.M., a man came to the Caravelle Motel and asked to rent a room saying that he intended to stay about 10 days. He registered as "John Matheos" of Peoria, signed a registration card bearing No. 6927, and was assigned Room 31. The original registration card was placed in a rack in the front office and a carbon copy was taken to the inner office. On the evening of January 6 the motel was raided by members of the special investigations unit, accompanied by two newspapermen, and a large quantity of stolen drugs was found in Room 31. There was evidence at the trial that at the time of the raid Cain removed the original registration card for Room 31 from the office. At the trial the carbon copy bearing No. 6927 was introduced and a handwriting expert testified that the writing was that of Chaconas. The room clerk testified at the trial that Chaconas was the man who registered for Room 31. The State's evidence at the trial tended to show that Chaconas did not participate in the raid.
Before the grand jury Chaconas swore that he was present when the stolen drugs were recovered and that he was not the man who registered for Room 31. He also testified that at the time of the raid he asked the desk clerk for the registration card for Room 31 but the clerk said he couldn't surrender it. Chaconas testified that he "could have" then copied the information for the original card on to a blank registration card. Cain and Donnelly testified that Chaconas participated in the raid. The indictment for conspiracy to commit perjury was based upon Chaconas's testimony that he did not rent and register for Room 31 and that he was present at the raid and upon the testimony of Cain and Donnelly that Chaconas was present at the raid.
In his opening statement to the jury counsel for the defendants stated that the evidence would show that the Caravelle Motel had two systems of registration. One, using duplicate cards each bearing a different number, was used for legitimate guests; the other, for the use of "hasty guests", used cards which all bore the number 6927. At the trial the room clerk identified the carbon copy of card No. 6927, signed by the man who had rented Room 31. On cross-examination counsel for the defendants produced three registration cards, all bearing the name of the motel and all bearing the number 6927. The room clerk testified that these cards seemed to be identical with the ones used by the motel, but reiterated that all the cards used at the motel were numbered in sequence and that there was only one card numbered 6927.
Thereafter the State called as a witness the president of the American Hotel Register Co., which supplied registration cards for the Caravelle Motel. He testified that in April 1963 his firm sold the motel 10,000 duplicate registration cards numbered 1001 to 11,000. He stated that there were no duplicate numbers and that there was only one card numbered 6927. He then testified that, long after the events at the motel, and shortly before the trial, counsel for the defendants called him and asked if he could have some samples of Caravelle Motel registration cards, all imprinted with the number 6927. He agreed to supply the cards but refused to print the numbers thereon and thereafter, at counsel's request, he delivered the cards to a member of the sheriff's police. He identified the cards which defense counsel had produced as the cards which he had supplied. Shortly after defense counsel commenced cross-examination of this witness the court excused the jury and, in open court, in the presence of members of the press, accused defense counsel of perpetrating a fraud upon the court and stated that he was going to appoint someone to look into the question of whether counsel was in contempt of court. In further discussion out of the presence of the jury counsel admitted that he obtained the cards and that he had another printer place the number 6927 on all the cards. He stated that his purpose was to show the ease with which cards bearing identical numbers could be obtained. The court repeated his remarks that the cards brought in by defense counsel were frauds and also referred to them as "manufactured evidence" and "phony pieces of evidence".
The following morning counsel for the defendants filed motions for mistrial based upon alleged prejudicial newspaper publicity which had appeared in Chicago papers the previous evening and that morning. The headlines of the newspaper articles were as follows: "DEPUTIES' LAWYER ACCUSED OF FRAUD", "JUDGE ASSAILS FAKE EVIDENCE IN ZAHN TRIAL", "JUDGE ACCUSES CAIN'S ATTORNEY OF GIVING FRAUDULENT EVIDENCE", "CAIN'S LAWYER ADMITS FAKING DEFENSE EXHIBITS", CAIN'S EXHIBITS PHONY". The articles quoted in detail some of the remarks the trial judge had directed to defense counsel. The court denied the motion for a mistrial but granted defense counsel's request that the jury be polled to determine whether they had seen or read the stories. With the exception of one juror, all of them denied reading any newspaper accounts of the prior day's proceedings. The eighth juror to be questioned made the following response to the court's questions:
"The Court: Josephine Cherback, have you read any newspaper accounts of the trial?
Juror Cherback: I was reading the paper this morning and saw that large page and I just
The Court: Did you see what was written on the page?
Juror Cherback: I wouldn't say, you know, I just took glances ...