Nos. 44287, 44288, and 44299 Appeals from the Circuit Court
of Cook County; the HON. JOSEPH A. POWER, Judge, presiding.
No. 44348 Original petition for mandamus and prohibition.
BARNABAS F. SEARS, pro se, and WAYLAND C. CEDARQUIST, both of Chicago, for petitioners.
S. JACK MICHELETTO, and JOHN P. COGHLIN, GEORGE J. COTSIRILOS, all of Chicago, for respondents.
Barnabas F. Sears, hereafter called Sears, alleging that constitutional issues are involved (Rule 302 (a)), and that the case is one of extraordinary importance (Rule 302 (d)), appeals directly to this court from two orders of the circuit court of Cook County adjudging him guilty of contempt. We allowed the joint motion of Sears and six organizations for leave to file original petitions for writs of mandamus and prohibition (Rule 381), and although separately argued, we have sua sponte consolidated the appeals and the original actions for consideration and opinion.
The record shows that the January 1970 grand jury of the United States District Court for the Northern District of Illinois, hereafter called the Federal Grand Jury, published a written report, which, although no indictments were voted, was critical of the conduct of certain police officers and other individuals involved in the execution of a search warrant for illegal weapons in an apartment on West Monroe Street in Chicago. During the occurrence, later widely publicized as the Black Panther raid, two members of the Black Panther Party were killed, and several other persons were injured.
A number of individuals and organizations filed petitions in the circuit court of Cook County requesting that a special grand jury be called and a special State's Attorney appointed to investigate the circumstances surrounding the occurrence. On June 26, 1970, the Honorable Joseph A. Power, Presiding Judge, Circuit Court of Cook County, Criminal Division, entered an order which inter alia recites that "the Federal Grand Jury Report, publicly issued on May 15, 1970, raises critical and unresolved questions concerning violations of the Illinois Criminal Law by employees of the State's Attorney's Office and employees of the Chicago Police Department as well as possible violations by members of the Black Panther Party and other persons involved in the raid of December 4, 1969, as reported above, and such other persons who, on said December 4th or thereafter, may have been involved in violations of the Illinois Criminal Law relating to this cause."
In the order the court found "1 That the instant cause or proceedings is one in which the States Attorney of Cook County is interested and which is, or may be, his duty to prosecute or defend and is an appropriate cause or proceeding for the appointment of a competent attorney to prosecute such cause or proceeding with the same power and authority in relationship thereto as the States Attorney would have had if present and attending to the same, all within the provisions of Section 6 of Chapter 14 of the Illinois Revised Statutes; 2 That the matters set forth in said petition are of sufficient importance to confer jurisdiction upon the Court to order a special venire to be issued for a grand jury and that public justice requires it, all within the provisions of Section 19 of Chapter 78 of the Illinois Revised Statutes." The court, inter alia, ordered that "It is therefore FURTHER ORDERED that Barnabas F. Sears, Esquire, a member of the Bar of this State, be and he is hereby appointed a Special States Attorney of Cook County, Illinois, to prosecute any matters that may arise from these proceedings and have the same powers and authority in relationship thereto as the States Attorney of Cook County, Illinois, would have had if present and attending to the same, upon his taking the proper oath required by law.
"It is FURTHER ORDERED that Barnabas F. Sears, as a Special States Attorney of Cook County, Illinois, be and he is hereby directed to examine the report of the January, 1970 Grand Jury of the United States District Court, Northern District of Illinois, Eastern Division, dated May 15, 1970, and the transcript, exhibits and other records upon which said report is based, and to take such other and further steps as may be necessary to determine if there were any violations of the criminal laws of the State of Illinois with respect to the subject matters set forth in said Grand Jury Report or averred in said petitions at bar, or related thereto, and to initiate appropriate proceedings, if necessary.
"It is FURTHER ORDERED that the said Barnabas F. Sears, as Special State's Attorney of Cook County, Illinois, be and he is hereby directed to draft the necessary order or orders for the issuance of a special venire for a grand jury, fixing the return day and providing for the impanelling thereof pursuant to law and present said order or orders to the Court at the earliest opportunity."
On November 4, 1970, Sears filed a petition in the circuit court stating that in compliance with the order of June 26, 1970, he and the assistants appointed by the court had examined the Federal Grand Jury report and the transcript, exhibits and other records upon which the report is based and "that petitioner is presenting his petition for an order for the issuance of a special venire for a grand jury at the earliest opportunity consistent with the due and proper presentation of the matters involved herein to a special grand jury; and that public justice requires the issuance of said special venire."
The court allowed the petition and ordered that a special venire be issued for a grand jury to appear on December 7, 1970, to serve for a period not to exceed 18 months.
On December 7, 1970, Judge Power impanelled and instructed the grand jury. The grand jury, apparently without undue incident, heard a number of witnesses and had before it a number of exhibits including a copy of the report of the Federal Grand Jury report.
On April 22, 1971, at the request of Judge Power, Sears brought the grand jury into Judge Power's court room. After some colloquy Judge Power instructed Sears that every witness who testified before the Federal Grand Jury was to be called before the grand jury.
On April 26, 1971, Sears and the grand jury again appeared before Judge Power. The record reflects extensive colloquy between the court and Sears, culminating in Sears's refusal to obey the order of April 22, 1971. The court thereupon entered two orders, later merged into one written order. The first order finds Sears guilty of contempt for refusing to subpoena for testimony before the grand jury every witness who testified before the Federal Grand Jury, and imposes a fine of $50 per hour "until such time as he complies with the order of this court to issue subpoenas and endeavor to have all of the witnesses who testified before the January 1970 Federal Grand Jury, testify before the 1970 Special Grand Jury #3." The court also found that certain statements made by Sears outside the court room "were embarrassing to the court and tended to interfere with the administration of justice" and fined him the sum of $100. It is from these orders that Sears appeals.
In the petition for mandamus filed in the original proceeding, Sears, the Chicago Bar Association, American Civil Liberties Union, Illinois Division, Businessmen for the Public Interest, Alliance to End Repression, The Lawyers Committee for Civil Rights under Law and the Chicago Council of Lawyers allege the impanelling of the special grand jury, Sears's appointment and other pertinent facts. They further state that one John P. Meade has filed a petition with Judge Power in which it is stated that Meade, by letter dated December 18, 1970, was advised by Sears that his "conduct in the performance of his official duties as a police officer of the City of Chicago is one of the subjects of this pending Grand Jury investigation". The Meade petition further states that the press, radio and television reports of the "workings and deliberations" of the special grand jury "so grossly breach the security of this Grand Jury and so irreparably taint its proceedings as to make further deliberations meaningless and a violation of your petitioner's constitutional rights." The Meade petition further states:
"5) Those reports, if true, further establish an effort by the Special State's Attorney to unlawfully influence said Special Grand Jury and to prevent it from expressing its independent judgment in arriving at its decisions.
"6) The members of the Special Grand Jury herein have not been sequestered, but at all times mentioned herein have been able to examine, see, hear, and become aware of said published and broadcast reports. The coverage in the mass media of said reports was on such a massive headline basis as to make it inevitable that many, if not all, of said jurors must have become aware of such reports."
There are attached to Meade's petition copies of a number of newspaper articles which purport to review both past and anticipated deliberations and actions of the special grand jury. Meade's petition concludes as follows:
"10) When such improper and public criticism of the Court is foisted upon a sitting Grand Jury, consciously or unconsciously it can serve only to confuse jurors, create ...