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People Ex Rel. Fisher v. Carey





APPEAL from the Circuit Court of Cook County; the Hon. RICHARD J. FITZGERALD, Judge, presiding.


The public defender of Cook County filed this class action on behalf of persons charged or who will be charged in the circuit court of Cook County with offenses proscribed by the Illinois Criminal Code to enjoin the State's Attorney of Cook County from intercepting subpoenaed police reports. The dispute relates to the time period after arrest but prior to indictment. The State's Attorney filed a third-party action requesting that the Public Defender be enjoined from causing service of subpoena duces tecum upon the police department. The trial court denied both requests for relief and in a written opinion ruled that the public defender must first move for the production of police reports under the rules governing discovery before causing service of a subpoena duces tecum upon the police department; that the State's Attorney may not intercept police reports called for in a subpoena duces tecum; and that the police department must deliver the subpoenaed reports to the court. The public defender has appealed from the trial court's denial of his request for an injunction. The State's Attorney has filed a cross-appeal claiming that the trial court erred in denying his request for injunctive relief against the public defender.

We must consider two issues in this appeal. First, we must determine the propriety of the procedures set out in the trial court's ruling. Secondly, we must consider the public defender's assertion that the rules of discovery and the process of the courts> are separate and distinct and that the promulgation of the discovery rules did not abolish the right of an accused to compulsory process during the period after arrest and prior to indictment.

The undisputed facts of the present case were presented to the trial court through pleadings, affidavits, and depositions. The public defender causes subpoenas duces tecum to issue through the clerk of the circuit court. These subpoenas are served upon the Chicago Police Department and seek various documents. Upon receipt of a subpoena, the records division of the police department gathers the material requested and sends it to the assistant State's Attorney who is assigned to the courtroom where the particular case is going to be heard. The prosecutor reviews the documents received and then turns over to defense counsel all or portions of the material sought.

After reviewing memoranda submitted and hearing arguments of counsel, the trial court ruled that when seeking police documents the public defender first must proceed under the discovery rules. Then, if that proves unsatisfactory, the public defender may lay a proper foundation for the issuance of a subpoena duces tecum.

Supreme Court Rule 411 provides:

"These rules shall be applied in all criminal cases wherein the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary. They shall become applicable following indictment or information and shall not be operative prior to or in the course of any preliminary hearing." Ill. Rev. Stat. 1975, ch. 110A, par. 411.

• 1 It is clear that the rules of discovery are intended to provide the procedure whereby both the defense and prosecution may obtain information to aid in their preparation of a case. In this respect, the trial court properly ruled that the public defender must first proceed under discovery before causing a subpoena duces tecum to issue. Its ruling ensures the orderly administration of the criminal justice system as well as providing a remedy in those instances where the procedure fails to produce the desired information.

The State's Attorney maintains that by causing subpoenas duces tecum to issue, the public defender is interfering with the State's Attorney's duty to ensure the flow of information from investigative agencies and of giving disclosure of certain information to criminal defendants. The State's Attorney bases his position on Supreme Court Rule 412(F) which provides:

"The State should ensure that a flow of information is maintained between various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged." Ill. Rev. Stat. 1975, ch. 110A, par. 412(F).

• 2 We conclude from a reading of this rule along with the committee comments thereto that the State's role is to facilitate the flow of information, not to monitor and control it. Under Illinois law, it is not within the province of the prosecution to pass upon the relevancy or materiality of documents requested by the defense. (See People v. Wolff (1960), 19 Ill.2d 318, 167 N.E.2d 197; People v. Norris (1972), 8 Ill. App.3d 931, 291 N.E.2d 184.) If the State objects to examination of documents by the defense, it is the duty of the court to review the materials requested and in its discretion, to delete unrelated matters before turning the documents over to the defense. People v. Wolff.

• 3 In the present case, it is undisputed that the prosecution obtains the subpoenaed documents from the police department and then turns over all or portions of the material to defense counsel. We agree with the trial court that the appropriate procedure is for delivery of documents to the court and if the State interposes any objections, the trial court shall review the documents and give to the defense that material which is relevant, material and not privileged. See People v. Wright (1964), 30 Ill.2d 519, 198 N.E.2d 316.

We turn now to the public defender's request for injunctive relief against the State's Attorney. The public defender points specifically to the period subsequent to arrest and prior to indictment as the time when issuance of a subpoena duces tecum is necessary. He argues that interference by the State at that time can result in delays which can result in prejudice to the accused.

• 4 In United States v. Nixon (1974), 418 U.S. 683, 41 L.Ed.2d 1039, 94 S.Ct. 3090, the United States Supreme Court set out the test to determine whether a subpoena duces ...

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