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In Re Extended March 1975 Grand Jury No. 655

OPINION FILED MAY 13, 1980.

IN RE EXTENDED MARCH 1975 GRAND JURY NO. 655. — (ALLIANCE TO END REPRESSION ET AL., PETITIONERS-APPELLANTS,

v.

BERNARD CAREY, STATE'S ATTORNEY, RESPONDENT-APPELLEE.)



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

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the circuit court of Cook County denying a petition filed pursuant to section 112-6(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 112-6(b)), which sought the release of all evidence received by the March 1975 Cook County grand jury No. 655.

The sole issue on appeal is the propriety of the trial court's order.

Appellants in this case are plaintiffs in Alliance To End Repression et al. v. Rochford et al., No. 74 C 3268, a case presently pending in the United States District Court for the Northern District of Illinois. Appellants, together with plaintiffs in American Civil Liberties Union et al. v. City of Chicago et al., No. 75 C 3295, also presently pending in the district court, petitioned the presiding judge of the criminal division of the circuit court of Cook County, Illinois, for disclosure to them, under a protective order, of all evidence, including transcripts of proceedings, received by the March 1975 Cook County grand jury No. 655. The district court cases are civil class action suits alleging unconstitutional, politically motivated surveillance, harassment, and intimidation by members of the Chicago police department security section in conspiracy with other city and Federal defendants. *fn1

The March 1975 grand jury No. 655 was impaneled to investigate allegations of improper gathering and dissemination of intelligence data by members of the security section of the Chicago police department's intelligence division. The grand jury issued a report of its investigation, a copy of which was attached to the petition involved in this case. The report indicated that based upon the evidence presented, which included testimony from 71 witnesses and more than 5,000 pages of subpoenaed documents, the grand jury found that the "* * * Security Section of the Chicago Police Department assaulted the fundamental freedoms of speech, association, press and religion, as well as the constitutional right to privacy of hundreds of individuals." However, the grand jury did not return indictments. The grand jury reasoned that a criminal prosecution of the few against whom indictments could be returned would highlight some disjointed criminal acts rather than present a comprehensive overview of abusive police intelligence activity. The grand jury also found that a number of key witnesses were now deceased and crucial physical evidence had been destroyed. According to the report, the grand jury did forward a sealed list naming 13 Chicago police department officials to the superintendent of the Chicago police department, hoping that appropriate administrative action would be taken. It was the grand jury's belief that its report, together with disciplinary action against the individual police officers and the appropriate civil remedies available to those most directly aggrieved, would serve as a deterrent to others and a foundation upon which to work for the future.

Relying on this report, appellants in their petition alleged that the Federal class actions were the type of actions the grand jury had contemplated as appropriate civil remedies, and because the grand jury expressly deferred to civil litigation, it was essential that the evidence heard by the grand jury be made available to them; that justice requires grand jury evidence regarding police misconduct be released in order to maintain the integrity and credibility of the police; and that the city defendants' resistance to discovery and the destruction of crucial evidence presented specific and compelling needs for the production of the evidence.

A hearing was held on the petition by the chief judge of the criminal division of the circuit court of Cook County, the same judge who had presided over grand jury No. 655. The chief judge pointed out that he had refused to accept the grand jury's report on the basis that it was not authorized by the court and was issued beyond the scope of the grand jury's authority. *fn2 The judge stressed the sensitivity involved in the proceedings of this grand jury. He stated that many of the police officers feared losing their jobs because of the testimony they might have to give. Potential witnesses came to him and told him certain individuals who did testify had to go back and make a written report of the testimony they had given. This, the judge said, "practically stymied our grand jury and the investigation." To eliminate this intimidation and to insure a constant flow of testimony, the judge imposed a "gag order" prohibiting all witnesses from disclosing their testimony before the grand jury in any manner to any member of the Chicago police department. He stated that as a result of this order and the assurances he gave, witnesses did voluntarily testify before the grand jury. He stated that grand jury proceedings cannot be used to preserve or obtain testimony for use in civil suits. He acknowledged the fact that when an indictment is returned, the witness' testimony before the grand jury can be obtained for the purpose of impeachment at trial, but that in this case no indictments had been returned. He pointed out the possibility of reputations being destroyed simply by a revelation of those who testified. He noted that the police officers were still open to censureship in many ways if they were compelled to disclose the testimony they gave. He stated that the rights and privileges of a witness testifying before the grand jury must be weighed against the rights of a person who is instituting a civil suit. Based upon these considerations, the chief judge denied the petition.

This court allowed the state's attorney leave to intervene and file a brief as appellee in this appeal, and allowed amici curiae briefs to be filed by the corporation counsel on behalf of the city of Chicago and by Michael Randy, a former police officer who had testified before the grand jury.

At oral argument, the assistant state's attorney informed this court of the appeal in Socialist Workers Party v. Grubisic which at that time had been argued before the Seventh Circuit Court of Appeals and was awaiting decision. Plaintiffs in that case filed a civil rights action in Federal court alleging victimization for their political views by a right-wing, paramilitary organization known as the Legion of Justice in conspiracy with members of the Chicago police department and the 113th Military Intelligence Group of the United States Army. Bernard Carey, a nonparty to the action, was served with a subpoena duces tecum requesting him, as State's Attorney, to produce records and transcripts of the March 1975 Cook County grand jury No. 655 proceedings. Carey moved to quash the subpoena. The district court denied Carey's motion and subsequently ordered Carey to produce that portion of the subpoenaed materials he thought should be produced in the public interest and to submit the balance of the materials to the district court. Carey appealed that order on the basis, inter alia, that the parties seeking the grand jury evidence failed to make specific requests supported by a requisite showing of particularized need. The Seventh Circuit recently rendered its opinion in Socialist Workers Party v. Grubisic (7th Cir. 1980), 619 F.2d 641, stating:

"We need not at this time reach the issue whether the district court's order is too broad or not broad enough in its scope because we hold that in the circumstances of this case, notions of comity between the state and federal courts> require that the plaintiffs first seek disclosure in the state court with supervisory powers over the grand jury." (619 F.2d 641, 643.)

However, the court went on to state that its decision did not give the State courts> a veto over disclosure of the materials in the Federal civil rights case, but rather was a preliminary stage designed to forestall unnecessary intrusion by Federal courts> in State grand jury proceedings or to ensure that the State interest in secrecy is thoroughly considered. The court stated that in the event plaintiffs were unsuccessful in the State court, the Federal district court may have to take custody of the grand jury materials and rule on specific requests for disclosure taking into account the need for secrecy developed during the State disclosure proceeding. We do not interpret the language used by the Court of Appeals as a threat to the free exercise of our judgment in this case. Rather, we base our conclusion solely on the record before us and the applicable law.

I.

In Illinois, the purpose of secrecy surrounding grand jury proceedings is to prevent the escape of those under indictment, to insure the grand jury freedom in its deliberations, to prevent subornation of perjury, to encourage disclosure by witnesses, and to protect the innocent from unwarranted exposure. (People v. French (1965), 61 Ill. App.2d 439, 441-42, 209 N.E.2d 505; People v. Johnson (1964), 31 Ill.2d 602, 605-06, 203 N.E.2d 399.) This court in French further stated that "* * * the purpose of secrecy is designed to assure freedom of deliberation of future grand juries, and the participation of future witnesses, as well as to provide these assurances to those who appeared before the instant proceeding." 61 Ill. App.2d 439, 442.

However, the veil of secrecy surrounding grand jury proceedings is not absolute. Section 112-6(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. ...


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