United States District Court, Northern District of Illinois, E.D
June 17, 1982
UNITED STATES OF AMERICA EX REL. THEODORE BACON, PETITIONER,
RICHARD DEROBERTIS, RESPONDENT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Theodore Bacon ("Bacon"), a prisoner at Stateville Correctional
Center in Joliet, Illinois, brings this habeas corpus proceeding
against Stateville Warden Richard DeRobertis ("DeRobertis"). Both
sides have moved for judgment as to Count I of Bacon's two-count
petition, the parties having no disagreement on the facts
underlying that count.*fn1 For the reasons contained in this
memorandum opinion and order, DeRobertis' motion is granted and
Bacon's motion is denied.
Bacon was arrested in Florida August 29, 1977 on the charge of
having killed his girl friend, Josie Brown ("Brown"), in Chicago
in April 1976. After his arrest Bacon was interrogated in Chicago
by the Assistant State's Attorney and a police investigating
officer in the presence of a court reporter. Bacon never signed
the statement that resulted from that session. In part the
statement described a heated argument between Bacon and Brown
that ended in a physical altercation. According to Bacon he
struck Brown several times with an open hand, and she fell and
hit her head on the television set. Though Bacon thought she was
only unconscious, the impact was actually fatal. Bacon concluded
by claiming he loved Brown and her death was a freakish accident.
On September 20, 1977 Cook County Circuit Court Judge Maurice
Pompey conducted a preliminary hearing. Based on Bacon's written
statement Judge Pompey declined to find probable cause to charge
Bacon with murder. Instead Judge Pompey concluded the statement
could establish probable cause against Bacon only for involuntary
Nonetheless Assistant State's Attorney Thomas O'Donnell
("O'Donnell") appeared before the Cook County Grand Jury two days
later and requested a true bill for murder against Bacon. Before
the grand jury the State offered only the testimony of Chicago
police officer Harold Kunz, one of the two officers who had
brought Bacon back from Florida. During Kunz' grand jury
testimony O'Donnell twice referred to Brown's death as a
In substantive terms Kunz' testimony said simply that on their
trip back from Florida to Chicago, Bacon had admitted to Kunz and
his fellow officer that Bacon had struck Brown several times and
killed her. O'Donnell did not however disclose to the grand jury
either Bacon's statement (with its exculpatory explanation) or
Judge Pompey's conclusion from the statement that probable cause
existed to charge Bacon only with involuntary manslaughter. Based
on the less than candid presentation made to it, the grand jury
returned a true bill charging murder.
At Bacon's trial, his statement withheld from the grand jury
was part of the evidence submitted to the petit jury, although
the trial judge refused to give an instruction on involuntary
manslaughter. Bacon was convicted of murder and sentenced to a
term of not less than 40 or more than 80 years. Bacon exhausted
his state remedies and then brought this habeas action, Count I
of which contends O'Donnell violated Bacon's due process rights
during the very brief grand jury proceeding by:
(1) failing to present to the grand jury evidence
exculpating Bacon from the murder charge; and
(2) improperly referring to Bacon's offense as
Review of Prosecutorial Misconduct Involving the Grand Jury
O'Donnell's conduct in shielding the relevant facts from the
grand jury was frankly outrageous: It was wholly at odds with the
principle that the lawyer we are accustomed to call a
"prosecutor" is really one whose client, as the caption of state
criminal cases says, is the "People of the State of
Illinois."*fn2 But this Court does not sit as an Attorney
Registration and Disciplinary Commission to sanction O'Donnell,
nor does it occupy the same supervisory role as to Assistant
State's Attorneys that it would were comparable misconduct by an
Assistant United States Attorney encountered in the Court's own
docket.*fn3 Thus the conclusion that the prosecutor's activities
were egregiously wrong marks the beginning rather than the end of
This Court proceeds arguendo upon the assumption that habeas
review may be available to remedy due process violations
committed in the course of state grand jury proceedings. See
United States ex rel. Talamante v. Romero, 620 F.2d 784, 789-90
(10th Cir. 1980) (where the same assumption was made but the
question was specifically not decided, id. at 790 n. 6). That
proposition is not necessarily self-evident, for the essence of
habeas corpus is after all a challenge to the validity of
confinement. By definition, then, it would seem that for a flaw
in state grand jury proceedings to be cognizable in a federal
habeas petition, the defect should have been the cause of the
petitioner's imprisonment in a but-for sense.
Under that analysis the cases that have dismissed federal
indictments because of prosecutorial misconduct affecting the
grand jury are not really precedents for granting Bacon relief
United States v. Cederquist, 641 F.2d 1347, 1352-53
(9th Cir. 1981) ("`[d]ismissal of an indictment is
required only in flagrant cases in which the grand
jury has been overreached or deceived in some
significant way.' [citation omitted]. It must be
shown that the prosecutor's conduct significantly
infringed upon the ability of the grand jury to
exercise its independent judgment.").
United States v. Ciambrone, 601 F.2d 616, 623 (2d
Cir. 1979) ("prosecutor . . . may not obtain an
indictment on the basis of evidence known by him to
be perjurious . . . or by leading it to believe that
received eyewitness rather than hearsay testimony.").
United States v. Kennedy, 564 F.2d 1329, 1338 (9th
Cir. 1977) ("only in a flagrant case, and perhaps
only where knowing perjury, relating to a material
matter, has been presented to the grand jury should
the trial judge dismiss an otherwise valid indictment
returned by an apparently unbiased grand jury.").
United States v. Roberts, 481 F. Supp. 1385, 1389-90
(C.D. Cal. 1980) (dismissal justified by a
prosecutor's breaching understanding with judge to
present all evidence exculpating defendant to grand
jury and by prosecutor's "unwise and prejudicial
United States v. Gold, 470 F. Supp. 1336, 1345-46
(N.D. Ill. 1979) (prosecutor's conflict of interest
voids indictment voted by grand jury even without
showing of prejudice).
United States v. Phillips Petroleum Co., 435 F. Supp. 610,
618-20 (N.D. Okla. 1977) (prosecutor's knowledge
and withholding of evidence tending to negate
defendant's criminal liability, plus the presence of
other irregularities in grand jury process, justify
dismissal of indictment).
United States v. DeMarco, 401 F. Supp. 505, 513-14
(C.D. Cal. 1975) (nondisclosure of "information vital
to the grand jury's informed and independent
judgment" requires dismissal of indictment).
Bacon's heavy reliance on authorities of that nature is
for the situation after trial and conviction is
conceptually very different.
One other factor referred to earlier in this opinion, though
not always discussed in the decisions, further diminishes any
precedential force of the cases already cited. Federal courts
have inherent supervisory power over federal grand juries and
federal prosecutors. See, e.g., Cederquist, 641 F.2d at 1352;
Roberts, 481 F. Supp. at 1387, 1389; Phillips Petroleum, 435
F. Supp. at 622; DeMarco, 401 F. Supp. at 514. Whatever that
relationship may rationally justify by way of judicial sanctions
in response to federal prosecutors' improprieties,*fn5 the same
response does not automatically extend to the state grand jury
and the state prosecutor.
But that consideration remains secondary to the distinction
epitomized by the facts here. Once the trial has taken place —
with the information withheld from the grand jury having been
part of the grist for the petit jury's mill*fn6 — the prisoner can
scarcely show prejudice from the grand jury's imperfect
knowledge. If a jury finds a defendant guilty of murder beyond a
reasonable doubt, can he effectively argue that had the same
information been put before the grand jury it would have found
probable cause only for manslaughter and not for murder? Though
the reasoning smacks somewhat of post hoc, ergo propter hoc, it
defeats Bacon's right to complain in constitutional terms.
It does of course offend one's sense of fundamental fairness to
permit a prosecutor to shop for a more receptive ear to expose
the defendant to a far more serious criminal charge. In the
language of Cederquist, such conduct can appropriately be viewed
as one of the "flagrant cases in which the grand jury has been
overreached or deceived in some significant way."
But on the facts now before the Court*fn7 an untainted conviction
has intervened to cause Bacon's present confinement. Under
reasonably comparable circumstances (involving perjured testimony
before the grand jury but not at trial), Talamante found no due
process violation on similar reasoning, 620 F.2d at 791:
The record establishes that Talamante's conviction
was not affected by the perjured testimony. Bracy v.
United States [435 U.S. 1301, 98 S.Ct. 1171, 55
L.Ed.2d 489 (1978) (Rehnquist, J., op. in chambers)].
Even if the perjured testimony had been brought to
the attention of the grand jury, it seems highly
unlikely, in view of the petit jury's later finding
of guilt after a full trial, that the grand jury
would have failed to indict based on probable cause.
Such negates the inference of constitutional error.
United States v. Ciambrone, 601 F.2d 616, 625 (2d
Only one decision has been found actually reversing a
conviction for grand-jury-related prosecutorial misconduct,
United States v. Basurto, 497 F.2d 781, 786 (9th Cir. 1974).
Basurto relied on cases in which the prosecutor's misconduct
(primarily known perjured testimony used at trial) tainted the
defendant's trial — an obvious ground for undoing the effect of
the taint by vacating the conviction and granting a new trial.
For the reasons already discussed, this Court does not agree
Basurto was entirely sound in analogizing the two situations even
in the entirely federal context. It will not extend the notion
even farther to embrace a habeas corpus attack on a state court
Effectively the parties' motions as to Count I are analogous to
cross-motions for summary judgment. Bacon's is denied and
DeRobertis' is granted, for there is no genuine issue as to any
material fact and DeRobertis is entitled to a judgment as a
matter of law. Bacon's petition for a writ of habeas corpus as to
Count I is denied.