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In Re Grand Jury Investigation of Swan

OPINION FILED JANUARY 20, 1981.

IN RE GRAND JURY INVESTIGATION OF DONALD SWAN. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

DONALD SWAN, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Du Page County; the Hon. ROBERT A. NOLAN, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Following a bench trial respondent, Donald Swan, was found guilty of contempt for his refusal to obey an order of the trial court that he comply with a grand jury subpoena directing him to provide that body with a set of impressions of his fingertips. A fine of $100 was imposed to be assessed against him for each day he failed to obey the order. Respondent appeals, contending that the trial court erred in (1) applying the doctrine of purgation by oath; (2) failing to quash the subpoena; (3) the procedures followed at his contempt hearing which denied him due process of law; (4) that he was not proven guilty beyond a reasonable doubt; (5) refusing to permit him to make an offer of proof; (6) denying his motion to disqualify the State's Attorney of Du Page County from prosecuting the case; and (7) holding his trial in secret.

The events which led to this appeal arose from an investigation by the grand jury of Du Page County into alleged improprieties committed by respondent in the performance of his duties as supervisor of York Township and as a member of the county board of Du Page County, and also in relation to a listening device found on his wife's telephone. He was initially served with a subpoena to appear before the grand jury on September 25, 1979; he appeared, but after waiting for several hours was not called to testify. On October 17, 1979, respondent was again served with a subpoena for his appearance on the next day and which directed him to provide the grand jury with his fingerprints and handwriting samples. Respondent's failure to appear at the designated time was excused because his presence was required in another pending lawsuit and he could not comply with the subpoena on such short notice. Swan did, however, appear before the grand jury on October 25, 1979, and gave handwriting samples and several sets of fingerprints.

The grand jury subsequently determined that it would also need a set of Swan's fingertip prints and on December 27, 1979, he was served with a subpoena directing him to appear on January 17, 1980, for that purpose. Swan did not appear on the designated date and on January 29 moved to quash the subpoena. The trial court denied his motion and ordered Swan to appear before the grand jury on February 7, 1980, and provide it with a set of impressions of his fingertips. The court also prohibited the State from seeking additional subpoenas, except on motion with notice to defendant with an opportunity to be heard. While Swan did appear before the grand jury on February 7, he refused to permit impressions of his fingertips to be taken.

On February 13, 1980, the State filed a petition for rule to show cause which alleged, inter alia, that Swan wilfully refused to comply with the order of January 29, 1980. In his answer to the petition, which also stood as his answer to the rule when it issued, Swan admitted the court had ordered him to give fingertip impressions to the grand jury but "deni[ed] that he `wilfully refused' to provide fingertip impressions but did so strictly because of violations of fundamental * * * constitutional * * * rights." His attorney also stated to the court during the hearing of the petition that respondent had failed to comply with the court's order.

The State offered no evidence in support of its petition, arguing that none need be adduced since Swan's admission that he did not comply with the court's order made a prima facie case for contempt. Swan then testified that several subpoenas had been served upon him; that he lost customers in his insurance business because they had been called to testify before the grand jury; that private communications between him and his wife had been used by law enforcement officers; and that he had earlier provided the grand jury with impressions of his fingertips.

The trial court viewed this testimony as immaterial to the issue before it, that being whether Swan's failure to comply with its order of January 29, 1980, was wilful, and declined to hear further testimony. The judge concluded Swan was seeking again to quash the subpoena by introducing evidence which the court had earlier considered to be insufficient to quash it. As Swan had produced no evidence tending to show that his refusal to obey the order compelling him to comply with the subpoena was not wilful, or had not otherwise shown that the order was void, the court found him guilty of contempt and imposed the fine.

I

Swan first contends that the trial court erred in applying the doctrine of purgation by oath. He bases this claim of error upon the trial court's reliance on People v. Ryan (1952), 412 Ill. 54, 104 N.E.2d 821, for the proposition that a denial under oath of the allegations of a petition for a rule to show cause should "end the proceedings because from that particular point on it would be a prosecution for perjury or it would be nothing." He notes that purgation by oath was abolished in People v. Gholson (1952), 412 Ill. 294, 106 N.E.2d 333, and argues that by adhering to this doctrine, the trial court denied him due process as the State was relieved of its burden of proving him guilty beyond a reasonable doubt if it could present a prima facie case simply by filing a petition for rule to show cause. The State, however, correctly points out that even if the trial court believed purgation by oath to be a viable doctrine, it was not applied in this case. It did not depend for evidence on a denial of the State's petition by respondent, but based its findings upon admissions by respondent and his counsel that he failed to obey the court's order to give impressions of his fingertips.

II

We next consider respondent's contention that the trial court erred in refusing to quash the subpoena.

In his motion filed on January 29, 1980, Swan challenged the subpoena on the grounds it was issued for purposes of harassment, stating he had previously supplied the grand jury with fingertip prints; that it was issued in order to prejudice him in the eyes of the grand jury; that he had lost customers in his insurance business as they too had been called to testify; that the law enforcement officials were inept at analyzing their own information; and that the grand jury was using information acquired by law enforcement officials in violation of respondent's marital privilege. The trial court had declined to hold an evidentiary hearing of the motion, reasoning that, as a matter of law, the allegations did not present grounds to quash the subpoena and that it would have a "chilling effect" on the grand jury process to call witnesses who had testified in those proceedings and might have to testify again.

• 1, 2 We agree with respondent's argument that a court has a duty to prevent perversion of the grand jury process (People v. Sears (1971), 49 Ill.2d 14, 273 N.E.2d 380), and that the use of information acquired in violation of a privilege (cf. Black v. United States (1966), 385 U.S. 26, 17 L.Ed.2d 26, 87 S.Ct. 190 (attorney-client privilege); In re January 1976 Grand Jury (7th Cir. 1976), 534 F.2d 719 (attorney-client privilege)), or otherwise illegally acquired (People v. Maslowsky (1966), 34 Ill.2d 456, 216 N.E.2d 669 (eavesdropping)), should be suppressed. It is, however, only under the most extraordinary circumstances, where necessary to prevent a deprivation of due process or a miscarriage of justice, that a court should exercise its supervisory power over a grand jury investigation. (See People v. Sears.) The grand jury's request for fingertip prints in the present case cannot be considered as harassment; the considerations of due process which govern grand jury proceedings do not give rise to a right to refuse to comply with a subpoena simply because the witness believes the grand jury already has the information requested. While repeated requests for information already provided could amount to such a disregard for due process that a court would exercise its supervisory powers, the facts of this case do not warrant such judicial intervention. The trial court's order prohibiting further subpoenas directed to defendant except on motion of the State sufficiently protected him from abuse of the grand jury process.

• 3, 4 As to Swan's claim of violation of his marital privilege we need only note that considerations of a marital privilege are not material to a request for fingertip prints of the spouse subpoenaed. Similarly, the trial court properly declined to hear testimony relating to Swan's other allegations on the basis that it would have a "chilling effect" on the grand jury's investigation. While a court does have supervisory power over a grand jury, it has historically been an independent body (People v. Sears), and it could not fulfill its function and purpose if ...


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