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October 30, 1972


The opinion of the court was delivered by: Robert L. Taylor, District Judge.


Before the Court for consideration is the motion of defendant Kerner to continue the trial of the case if the Government does not satisfy his request for particulars. Also before the Court is a companion motion for an order compelling the Government to provide forthwith greater particularization than heretofore provided as to paragraph 11, Count 1, "under the sanction of contempt for failure to comply."

The Grand Jury charged that it was part of the conspiracy that shares of stock would be made available to Kerner and Isaacs:

In a motion for particulars, Kerner asked for specification of the "public functions, decisions, actions and duties" to which the paragraph referred. We granted the request by an order filed May 30, 1972.

The Government filed its compliance with that order on July 26, 1972. Therein it stated that, as Governor, Kerner had the responsibility for appointing the Director of the Illinois Department of Revenue who was responsible for the collection of revenue from the horse and harness racing industry,*fn1 and for appointing the members of the Illinois Racing Board*fn2 and the Illinois Harness Racing Commission that had responsibility for awarding racing dates and otherwise regulating the industry. It stated further that, as Governor, Kerner was required to make decisions and to take actions concerning legislation affecting the racing industry which the Illinois General Assembly submitted to him. Additionally, he was required to submit proposed legislation affecting the racing industry to the General Assembly.

At the third pre-trial conference on October 24, 1972, Kerner's counsel challenged the adequacy of that response for the first time. He argued convincingly that there were warehouses of legislative records concerning the years when Kerner was Governor, thus making it impossible to prepare his defense unless the Government identified the bills it contends were affected by the alleged bribe. In our order of October 30, 1972, we expressed our opinion that the request that any specific legislative or executive action which the Government contends resulted from the alleged bribe be identified had merit and the Government should supply the information.

The Government subsequently filed a statement contending (1) that all appointments to the Illinois Racing Board and the Illinois Harness Racing Commission, particularly the appointment of defendant Miller as Chairman of the former, were actions favorable to the specified racing interests; (2) that forty-six specific bills introduced in the Illinois General Assembly during Kerner's term as Governor were acted upon by Kerner in a manner favorable to the aforesaid racing interests; and (3) that both Kerner and Isaacs intervened with members of the racing board and the harness commission on behalf of these racing interests regarding the allocation of racing dates. The statement also contains a fourth category of actions which would seem to preserve the Government's right to introduce proof of other executive or legislative acts.

The instant motion for greater particularization calls for:

    "1. An identification of each appointment to
  the Illinois Racing Board and the Illinois
  Harness Racing Board which the government
  contends was the result of a bribe; a statement
  as to whether the appointee knew that he had any
  obligation during his term of office to act
  favorably toward the entities listed in the
  government's Statement of Compliance and a
  description of favorable action taken by such
  appointee[s] during the term[s] of office.
    "2. A statement of the specific action taken by
  the governor with respect to each of the
  forty-six bills listed in response numbered `2'
  of the Statement of Compliance which is alleged
  to be the `favorable' action relied upon to
  support the contentions of ¶ 11

  of Count I of the Indictment; a brief description
  of the nature of the bill and a brief statement
  as to the manner by which the government contends
  the bill was of benefit to the Everett racing
  interests, and a statement as to whether the
  particular action taken by the governor is
  contended to be the result of a bribe.
    "3. A statement identifying the particular
  member[s] of the Racing Board and Harness Racing
  Commission with whom Governor Kerner or Theodore
  Isaacs is said to have `intervened'; the time or
  approximate times of such intervention; the
  identity of the entity on whose behalf the
  intervention took place and a brief description
  of the `intervention' referred to.
    "4. A statement identifying the problems
  referred to in the Statement of Compliance and
  relating each particular problem to an identified
  state regulatory agency. The statement should
  include as well an identification of the person
  or persons who allegedly acted at the direction
  of Kerner and those who acted at the direction of
  Isaacs, and it should also describe briefly, so
  as to be recognizable, the decision made and how
  it favored the Everett racing interests."

In his brief in support of these motions, counsel for Kerner states:

    "The government's response to that order is
  broken down into four numbered answers, each of
  which escalates in evasiveness and obfuscation.
  The conclusion is inescapable that the government
  does not intend to comply with the Court's
  orders, either because it cannot support its
  allegations or because it wishes to deter the
  defendant from preparing his defense. The result
  of noncompliance is contemptuous and either
  reason is inexcusable." (pp. 2-3)
    "The first numbered response by the prosecutor
  is better than the rest but only by contrast.
  Objectively it is as much an avoidance of honesty
  as the rest . . .
    ". . . [The United States Attorney's] sweeping
  assertion sounds more Joseph McCarthy-esque than
  responsible. This Court should, prior to trial,
  make a relentless inquiry of Mr. Thompson to
  ascertain whether he has any substance to the
  contention he makes in this response." (p. 6)

The thrust of these motions is discovery of the Government's proof. The function of a bill of particulars is to prevent surprise or double jeopardy; it is not a discovery device. We have previously ruled on that question in this case. See 347 F. Supp. 743, 762.

As counsel agreed at the hearing on January 20, 1972, the cut-off date for pre-trial motions was March 20, 1972. Fifty motions were filed prior to that date by defense counsel. We ruled on most of these, including Kerner's request for particulars as to ΒΆ 11, Count 1, in our order of May 30, 1972. The Government complied with that ruling on July 26, 1972. Kerner's counsel ignored the statement of compliance until three weeks before the original trial date. Now three weeks before the second ...

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