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June 17, 1982


The opinion of the court was delivered by: Shadur, District Judge.


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 manslaughter.

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 "murder."

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 the inquiry.

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 ...

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