Appeal from the Circuit Court of Cook County. Honorable Michael P. Toomin, Judge Presiding.
Presiding Justice Hartman delivered the opinion of the court: Scariano and Burke, JJ., concur.
The opinion of the court was delivered by: Hartman
PRESIDING JUSTICE HARTMAN delivered the opinion of the court:
Defendant Harry Aleman appeals the circuit court's order denying his motion to dismiss two murder indictments against him. The procedural history of these indictments is unusual and requires extensive recountal for fuller understanding of the issues presented in this appeal.
On September 27, 1972, Billy Logan was shot to death on West Walton Street in Chicago, for which Aleman was indicted in December 1976. Following a bench trial in May of 1977, he was acquitted. In October of 1975, Anthony Reitinger was shot to death near Taylor Street in Chicago. A grand jury indicted Aleman for both murders in December 1993, over 15 years later.
Aleman moved to dismiss the indictments based upon considerations of double jeopardy, speedy trial and estoppel. The State countered that Aleman's 1977 trial was a nullity by virtue of a $10,000 judicial bribe to acquit him; therefore, double jeopardy is inapplicable.
The circuit court issued an "interim ruling" in October 1994, denying dismissal of the indictments and finding no legal impediment to trial, provided the State could prove the 1977 bribery. Entry of a final order was stayed until an evidentiary hearing could be held with respect to that alleged bribery. Aleman a motion to make the interim ruling final was denied on October 19, 1994.
Supreme Court Rule 604(f) interlocutory review sought by Aleman on October 26, 1994, was dismissed by this court. The Illinois Supreme Court denied Aleman's motion for a Supreme Court Rule 383 supervisory order on January 6, 1995.
The circuit court evidentiary hearing proceeded on February 9, 1995, over Aleman's objection. On March 9, 1995, the court entered a supplemental and final ruling, finding sufficient evidence to establish that Judge Frank Wilson had been bribed during the 1977 trial and denied Aleman's motion to dismiss the indictments.
The issues raised in this appeal include whether the circuit court (1) possessed jurisdiction to conduct the 1995 evidentiary hearing; (2) erred in denying Aleman's motion to dismiss the indictments by reason of double jeopardy; (3) erred in conducting the evidentiary hearing; (4) improperly ordered the indictments to stand in violation of his right to a "speedy prosecution" and speedy trial under the Illinois and United States Constitutions; (5) erred in finding that he was an active participant in the bribery scheme; and (6) improperly refused to immunize a proposed defense witness. Issues (1) and (2) will be considered in this opinion; issues (3) through (6) will be determined in a separate Supreme Court Rule 23 order disseminated contemporaneously.
Evidence adduced at the 1995 evidentiary hearing would permit a fact finder to believe the following. After Aleman was indicted in December 1976, his case was placed on the trial call of Cook County Circuit Judge James Bailey. His then attorney, Thomas J. Maloney, petitioned to substitute judges, naming Judges Bailey and Wilson, asserting that Aleman would not receive a fair trial before either of them. His motion was granted; the cause was transferred and reassigned to Judge Fred Suria. On March 8, 1977, Judge Suria recused himself from the case.
Aleman's cause was then assigned to Judge Wilson, who on March 22, 1977, granted his motion to withdraw Wilson's name from the earlier petition for substitution of judges. Maloney's motion to withdraw as Aleman's counsel was granted and Frank Whalen filed his written appearance as defense counsel on April 3, 1977.
Vincent Rizza, a former Chicago police officer, testified that during the end of 1974 and the beginning of 1975, while still an officer, one of his bookmaking operations was raided by the police. Rizza met Aleman, Jimmy Inendino and Johnnie Mancella in the spring or summer of 1975, and was told by Aleman that he owed $40,000 in back "street taxes," plus $1,000 per month thereafter for his bookmaking operation. "Street taxes" are monies paid to members of organized crime in order to protect the existence of the illegal operation.
Following Aleman's intrusion into Rizza's illicit business, Rizza met with Angelo LaPietra who, according to Rizza, also had ties to organized crime. LaPietra's negotiations permitted Rizza to pay Aleman $1,000 in street taxes plus a couple of hundred dollars per month for office expenses. Aleman and Inendino would cover all operation losses and the profits would be split. As part of the deal, Rizza also had to report other independent bookmakers to Aleman. One such independent bookmaker was Anthony Reitinger.
Rizza did not pay street taxes directly to Aleman after May of 1976, but continued to pay them to Joseph Ferriola, identified as Aleman's uncle. In the early winter of 1977, Aleman told Rizza that his murder indictment "was all taken care of," and that "committing murder in Chicago was okay if you killed the right people." He later told Rizza that he was going to request a bench trial "because the case was all taken care of"; going to jail was not an option; and he was not going to jail. Still later, Aleman told Rizza the case was going "fine." Rizza noted that the newspapers were crucifying him and the case looked bad. Aleman responded that the case was "taken care of."
On cross-examination, Rizza admitted that he had used cocaine frequently during the late 1970s and that he had committed perjury as a Chicago police officer and in his federal criminal drug case. Rizza stated that he had been in the Federal Witness Protection Program during the 1980s.
The parties then stipulated that pursuant to a 1990 federal prosecution, Aleman pled guilty to engaging in illegal activities with "the Ferriola street crew" which was controlled by the "the Outfit," an organized criminal group which collected wagers on sporting events and street taxes from independent bookmakers. He told attorney Robert Cooley to find independent bookmakers who were not paying street taxes and to place bets with them; if Cooley lost, Aleman would "grab" the bookmakers. Aleman's plea also admitted that Rizza operated a gambling business and paid $500 to $1,000 per month in street taxes to him and Inendino. He told Rizza to locate any independent bookmakers and tell them "Joe Nagel," Ferriola's nickname, had sent him. In the federal plea agreement, Aleman denied any participation in Reitinger's murder or Judge Wilson's bribery. He was sentenced to 12 years in prison.
Cooley, a former Chicago police officer and an attorney associated with the law firm of Cooley, DeLeo, and D'Arco, testified that during the time he practiced criminal law, he frequently bribed judges, prosecutors, clerks and sheriffs. In 1986, Cooley began working for the United States Attorney's office as an undercover informant.
In February 1977, Cooley met 1st Ward figures Pat Marcy and John D'Arco, Sr. Marcy asked Cooley if he "had a judge at 26th Street who could handle or take care of a case," one who would fix Aleman's case. Cooley knew of Aleman's reputation as the main enforcer for the mob in Chicago.
When Cooley ran into Judge Wilson, a close friend, he told Wilson of the approach to "handle" Aleman's case. Wilson informed Cooley that he had been "SOJ'd" (substitution of judge) on the case. Cooley later told Wilson the case was weak, it could be handled very easily, and that Cooley would pay him $10,000 for an acquittal. After Cooley again met Wilson the latter agreed to handle the case if Maloney, Aleman's attorney, would withdraw because he and Maloney were friends. Cooley then gave $2,500 to Wilson, the remaining $7,500 to be paid when the trial was over.
After paying Wilson initially, Cooley met Marco D'Amico and Aleman. Cooley assured Aleman that the case had been fixed; the judge would acquit him. Cooley then met Frank Whalen in a loop hotel in April 1977. Cooley told Whalen that he knew what he was doing, the judge was going to throw the case out, and the judge did not want to have any contact with Whalen. Cooley would act as middleman. Whalen agreed.
Cooley met Aleman with Butch Petrocelli, Aleman's "partner on a lot of hits," present. Aleman informed Cooley that his brother, Anthony, contacted a female witness to the Logan murder, who would accept $10,000 to testify that he had not done the shooting. Cooley later informed Judge Wilson about this witness; Wilson thought that was a good idea. Cooley did not inform Wilson of the $10,000 witness payment. Cooley then met Whalen in Florida a week before the trial and again assured him that Wilson would throw the case out.
On the second day of trial, Judge Wilson and Cooley met. Wilson was very upset and voiced his concern that the case was not as weak as Cooley had initially represented. The next day, Cooley told Marcy of this development. Marcy responded that Wilson had "better do what he's supposed to do."
Cooley met Wilson again. Wilson was even more upset this time because the prosecutors had informed him that a witness was receiving $10,000 for testifying falsely. Wilson was amazed that he was only receiving $10,000 although he was a "full circuit judge." Wilson explained that he may lose his job and asserted, "that's all I get is ten thousand dollars? I think I deserve more." Wilson blamed Cooley because he would receive "all kinds of heat" for this trial. He again requested more bribe money. Cooley told Wilson he would see what he could do. Wilson never expressed any intention not to fulfill his end of the deal. Cooley would pay Wilson the remaining $7,500 after the trial. Cooley met with Marcy again, who told him that Wilson "won't get a nickel more."
On May 24, 1977, Judge Wilson acquitted Aleman of Logan's murder. After the trial, Marcy gave Cooley two envelopes; one contained $7,500 for Wilson and the other held $3,000 for Cooley. That evening, Cooley and his secretary met Wilson at a restaurant. In the men's room, Cooley gave Wilson the $7,500. Wilson was upset because the press was "all over" him and complained, "That's all I'm going to get? I don't get any more than that?" Wilson then left.
A few weeks later, Aleman told Cooley that he had done a great job and asked for some business cards so that he could send him more business.
On cross-examination, Cooley testified, among other things, that he is paid $3,400 per month by the government.
Aleman introduced an F.B.I. report prepared by Special Agent John Bowen on March 1, 1989, following an interview with Cooley. Bowen's report indicated that Cooley asked Marcy to remove Maloney from defendant's 1977 murder trial because Cooley did not like him. The report also indicated that Cooley had ...