Original petition for mandamus.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 30, 1979.
We allowed the motion of relator, Leonard Mosley, for leave to file in this court an original mandamus action pursuant to our Rule 381 (58 Ill.2d R. 381). Relator had been indicted for murder by a Cook County grand jury, and, after numerous continuances, the case was called for trial on June 5, 1978. Selection of the jury and administration of their oath was completed on June 6. Before any evidence was presented on June 7, however, a mistrial was declared, and the writ of mandamus is now sought to bar the State's Attorney of Cook County from reprosecuting relator. It is further urged that this court establish a mode of appeal which would permit an interlocutory review of a trial judge's order denying dismissal of an indictment on double jeopardy grounds.
A detailed description of the context in which the mistrial was declared is necessary to an understanding of the issues. Following arguments and rulings on motions on the morning of June 7 and prior to opening statements, an assistant State's Attorney brought to the attention of the judge the fact that an article concerning the trial had appeared in that morning's Chicago Tribune. The article appeared under a headline indicating substantial delay had occurred between indictment and trial, and its text included information that two elderly prosecution witnesses had died prior to trial and related facts which could have provided a motive for the alleged crime. The assistant prosecutor moved to "voir dire" the jury to determine if any of the jurors had read the article and, if so, whether they would be biased. The defense, while objecting to the prosecutor's motion as premature, charged that the prosecution was responsible for the appearance of the newspaper article, and that this constituted fundamental unfairness and a violation of due process. In support of this allegation, defense counsel sought a court order compelling the appearance of the Tribune reporter who wrote the article. The following exchange then took place:
"THE COURT: If you make a motion, perhaps I could address myself, but now you are on a fishing trip and I don't know what you are driving at.
MR. MOORE [defense counsel]: Our motion is for a mistrial. Our motion is as to prosecutorial misconduct and fundamental unfairness."
After the court indicated a desire to examine the jury to determine if the jurors had read the article and, if so, whether it had influenced them, defense counsel responded:
"Prior to that, we presently have a motion for a mistrial, your Honor, and ask that we present you with a written motion. I would, at this time, ask leave of court to file a motion to dismiss the indictment. * * *"
The judge then called in the jurors and, addressing them as a group, asked: "How many of you read the Tribune this morning?" Receiving no response, the court again instructed the jurors not to read anything concerning the case in the newspaper. Defendant objected to the method of examination arguing that the jurors should have been questioned individually and moved for a mistrial on that basis. Finally, arguing that the examination of the jurors served to highlight the article and would encourage them to seek it out, the defense made its final motion for a mistrial in the following words: "At this time, Judge, I besiege [sic] you, please grant a mistrial."
Later in the day, and during the hearing on the reporter's motion to quash the subpoena requiring his presence, the assistant prosecutor admitted talking to the Tribune reporter and telling him about the deaths of the two elderly witnesses. Although defendant suggests that conversation resulted from a telephone call by the assistant to the reporter, there is nothing in the record before us corroborating that assertion, and the trial court apparently found to the contrary.
The court thereafter, in chambers with counsel present, examined each juror individually concerning his knowledge of the article, and each denied having read or seen it. The court did not inform the jurors of the content of the article but simply inquired whether they had heard about or read an article in the Tribune "about this case" or "about People v. Mosley." Following argument on defendant's written motion to dismiss the indictment because of the alleged prosecutorial misconduct, the court ruled as follows:
"There has been no evidence adduced before this Court to prove that the prosecutor, with malice aforethought, or deliberately gave information for the purpose of influencing the jury. However, it is the opinion of this Court that the conduct of the State's Attorney was imprudent, to say the least. It is the duty of this Court to see that all defendants get a fair and impartial trial.
* * * No evidence has been taken in this matter and the Court feels, in light of these facts, that the Court itself highlighted the article to the jury in the hope of seeking out whether or not the jury was influenced by the article. The Court did highlight that article, but the fact that evidence had not been taken in this case and this case had ...