are written jury instructions and a note from the jury foreperson to the trial judge--documents that would unquestionably be potential grist for the appellate mill.
Pucinski responds by offering an affidavit of the Deputy Clerk and copies of the three letters acknowledged by Yonover (D. Ex. A and Att. 3-5). Those materials establish that something was sent to Curry's lawyer on three occasions. But it is the contents of the mailings that Curry disputes. Pucinski offers no proof from which this Court can properly conclude that the "COMMON LAW RECORD AND EXHIBITS," "REPORT OF PROCEEDINGS, ONLY" and "SUPPLEMENTAL RECORD" included the written jury instructions, the foreperson's note or other items circled on Curry's list. Absent such proof this Court must credit Curry's version of events.
On March 26, 1992 Curry's conviction and sentence were affirmed (D. Ex. A, Att. 2). Soon thereafter, and proceeding without assistance of counsel (Yonover's representation ceased in January 1992, P. Ex. 3), Curry began to seek additional records that he planned to use in bringing suit under the Illinois Post-Conviction Hearing Act ("Post-Conviction Act," 725 ILCS 5/122-1 to 122-8)(P. 12(n)(2) P 6; P. Ex. 3). That search focused on obtaining copies of police reports that Curry supposed (incorrectly) to be in his file. Thus he filed an Illinois Freedom of Information Act ("FOIA," 5 ILCS 140/1 to 140/10) request directed at Pucinski asking for "Common Law Records. . .including police reports" (P. 12(n)(2) P 5; P. Ex. 1). After the FOIA request was denied (P. 12(n)(2) P 7; P. Ex. 1), Curry petitioned the Circuit Court unsuccessfully for a writ of mandamus ordering Pucinski to turn over copies of all relevant "common law records and police reports" (P. 12(n)(2) PP 10-11; D. Ex. A, Att. 1; P. Exs. 1 and 2). That relief was denied in an April 14, 1993 order simply reading "DENIED" (P. Ex. 2). Curry also telephoned Pucinski's office and caused his parents and wife to make similar requests, all to no avail (P. 12(n)(2) P 9). Curry did not invoke procedures set out in the Post-Conviction Act for accessing records in a post-conviction proceeding.
On June 4, 1993 the Illinois Supreme Court denied leave to appeal from the affirmance of Curry's conviction (D. Ex. A, Att. 6). On August 24, 1993 Curry's time for filing a post-conviction petition expired (P. 12(n)(2) P 12; P. Ex. 3). On May 27, 1994 Curry nevertheless filed such a petition (D. Ex. A, Att. 6), which was denied July 6 (P. 12(n)(2) P 13).
On September 27, 1993 Curry tendered his pro se Complaint against Pucinski in both her official and individual capacities. After this Court conducted its threshold review for non-"frivolousness" in the legal sense defined in Neitzke v. Williams, 490 U.S. 319, 324, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) and refined in Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1733-34 (1992), it appointed counsel to represent Curry. That appointment generated a First Amended Complaint ("FAC"), to which Pucinski responded.
Both Pucinski's original response and her Amended Answer failed to comply with the "clear roadmap" set out in Rule 8(b) ( Gilbert v. Johnston, 127 F.R.D. 145, 146 (N.D.Ill. 1989)), and after fair warning this Court deemed FAC PP 8-13 and 15-16 to have been admitted. That being so, this Court must credit Curry's allegation that the records he sought in his FOIA request "were needed so that [he] could prepare an effective and timely petition for post-conviction relief" (FAC P 10).
On August 31, 1994 this Court dismissed the FAC to the extent that it sought damages against Pucinski in her official capacity (see Drury v. County of McLean, 89 Ill. 2d 417, 422-24, 433 N.E.2d 666, 668-69, 60 Ill. Dec. 624 (1982), confirming the status of county clerks as members of State government rather than of any local government, a status that automatically triggers Eleventh Amendment immunity). This opinion therefore addresses only Pucinski's individual liability.
Curry's Substantive Rights
As an inmate Curry has a fundamental constitutional right of meaningful access to the courts. That right requires prison officials to provide all inmates with effective access to decent law libraries or adequate assistance from persons trained in the law--or perhaps to some alternative means of achieving the same goal ( Bounds v. Smith, 430 U.S. 817, 828, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977); Alston v. DeBruyn, 13 F.3d 1036, 1040-42 (7th Cir.1994); Corgain v. Miller, 708 F.2d 1241, 1247-51 (7th Cir.1983)). Because every case comprises two parts--law and fact--the concept of meaningful access necessarily embodies a requirement that inmates be provided access to their underlying factual records (cf. Rush v. United States, 559 F.2d 455, 458-59 (7th Cir.1977)(per curiam) (meaningful access "is impossible without a trial transcript or adequate substitute," and a state must bear the cost of providing trial records to defendants who cannot afford them). Although no Seventh Circuit decision has ruled directly on the issue, Allen v. Duckworth, 6 F.3d 458, 459-60 (7th Cir.1993)(citations omitted) spoke of the concept that arbitrary deprivations of a state-granted right of appeal violate due process:
We can assume, as a number of cases have held, though none in this circuit, that excessive delay in the processing of a criminal defendant's state appeal can be a denial of due process of law. The defendant has no federal constitutional right to an appeal, but a state is not permitted with one hand to grant such a right and with the other to take it away in an arbitrary fashion. . . .