Court of Appeals of Illinois, First District, Fifth Division
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Appeal from the Circuit Court of Cook County. No. 09 CR 19688. Honorable Nicholas Ford, Judge Presiding.
In the prosecution of a police officer for official misconduct and aggravated battery of two juveniles who allegedly threw an object that broke the rear window of his vehicle as he drove by the juveniles while off duty, the trial court erred in granting the officer's motion to dismiss the indictment charging him with those offenses on statute of limitations grounds, notwithstanding the fact that the indictment was returned just before the expiration of the three-year statute of limitations applicable to the offenses and was then sealed for 12½ months, since the date the indictment was returned was the date defendant's prosecution commenced and the sealing had no effect on compliance with the limitations period, especially when the indictment was sealed for the legitimate purpose of protecting a sensitive, ongoing investigation of a conspiracy within the police department to conceal the police officer's conduct in connection with a civil rights action based on the same incident, and the lengthy delay between sealing and unsealing the indictment did not result in any prejudice to the officer with respect to his rights to a speedy trial or due process; therefore, the cause was remanded for further proceedings.
For APPELLANT: Anita Alvarez, Cook County State's Attorney, Chicago, Illinois (Alan J. Spellberg, Jessica R. Ball, and Marci Jacobs, Assistant State's Attorneys).
For APPELLEE: Law Office of Thomas P. Needham, Chicago, Illinois (Thomas P. Needham and Erin M. Levy).
JUSTICE REYES delivered the judgment of the court, with opinion. Justices Lampkin and Rochford concurred in the judgment and opinion.
[¶1] The State appeals an order entered in the circuit court of Cook County granting defendant Jason Leavitt's motion to dismiss his indictment pursuant to section 114-1(a)(2) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-1(a)(2) (West 2010)) on statute of limitations grounds. On October 26, 2009, Leavitt was indicted by a Cook County grand jury for the offenses of official misconduct (720 ILCS 5/33-3(b) (West 2006)) and aggravated battery (720 ILCS 5/12-4 (West 2006)) for the October 28, 2006, beating of two 15-year-old juvenile detainees. On that same date, the indictment was sealed and remained sealed until November 12, 2010. On appeal, the State contends the circuit court erred in dismissing the indictment on statute of limitations grounds where the indictment was properly returned prior to the expiration of the statutory period. The State further contends the subsequent sealing of the indictment had no impact on the date the indictment was returned for statute of limitations purposes. For the reasons that follow, we reverse the judgment of the circuit court and remand the cause for further proceedings.
[¶3] On October 26, 2009, the State charged Leavitt, a member of the Park Ridge police department, by indictment for the offenses of official misconduct and aggravated battery. That same day, the State filed a motion to seal the indictment pursuant to section 112-6(b) of the Code (grand jury statute) (725 ILCS 5/112-6(b) (West 2008)). The State presented the motion to the presiding judge of the criminal division and requested the indictment be sealed because there was an ongoing investigation into a conspiracy within the Park Ridge police department to conceal Leavitt's offense. The State argued that, due to the sensitive nature of the investigation, it would serve the interests of justice to seal Leavitt's indictment until the conspiracy investigation was complete. The presiding judge after an ex parte hearing before a court reporter granted the State's request and entered an order sealing the indictment.
[¶4] On November 12, 2010, upon the State's motion, the presiding judge entered an order unsealing the indictment. Leavitt was subsequently arraigned on November 15, 2010.
[¶5] On February 25, 2011, Leavitt filed a motion to dismiss the indictment pursuant to section 114-1(a)(2) of the Code (725 ILCS 5/114-1(a)(2) (West 2010)). Leavitt contended that because the indictment remained sealed until November 12, 2010,
the prosecution of his case did not commence until after the applicable three-year statute of limitations period had expired (720 ILCS 5/3-5(b) (West 2006)). Leavitt further asserted the only legitimate reason indicated by the grand jury statute (725 ILCS 5/112-6(b) (West 2008)) for sealing an indictment is to secure a defendant's custody. Leavitt maintained there was no legal basis for sealing the indictment, as there was no indication he would flee or attempt to avoid apprehension.
[¶6] In a June 2011 supplement to his motion to dismiss the indictment, Leavitt also argued the indictment should be dismissed because it infringed on his speedy-trial and due process rights under the sixth and fourteenth amendments of the United States Constitution (U.S. Const., amends. VI, XIV).
[¶7] In response, the State asserted the sealing was necessary because the related conspiracy investigation was " very sensitive" as it involved members of the Park Ridge police department. The State also maintained Leavitt was indicted before the three-year statute of limitations had expired and, thus, prosecution had timely commenced.
[¶8] Attached to the State's response was a transcript of the ex parte hearing regarding the motion to seal the indictment. Assistant State's Attorney (ASA) John Mahoney, who investigated Leavitt's case, stated the following at the hearing on the motion to seal. At 2 a.m. on October 28, 2009, Leavitt, who was off duty, was driving eastbound on Touhy Avenue in Park Ridge, when a projectile struck the back window of his vehicle, shattering it. Leavitt pulled his vehicle over and pursued on foot the three juveniles he believed were responsible for damaging his automobile. Leavitt apprehended one of the juveniles, clubbed him in the back of the head with an unknown object, straddled him, and punched him in the face. Another Park Ridge police officer arrived at the scene by police vehicle and placed the juvenile in handcuffs. As the other officer was leading the juvenile to the police vehicle, Leavitt struck the juvenile again.
[¶9] The search resumed for the other juveniles. The two police officers cornered a second juvenile and placed him in handcuffs as he was facedown on a concrete driveway. While the juvenile was detained in this manner, Leavitt approached him and kicked him multiple times in the back of the head. Mahoney further testified, " We also have testimony some of the other officers joined in kicking this kid while he is down [in] handcuffs."
[¶10] The second juvenile was thereafter placed into a police vehicle. Leavitt, the ranking officer at the scene, ordered another officer to open the back door of that police vehicle. Leavitt then reached into the police vehicle and punched the juvenile in the face " between five to ten times." The juvenile slid over to the other side of the backseat to avoid being struck by Leavitt. Leavitt then walked around the back of the police vehicle, opened the passenger door and " starts punching the kid again, choking him." 
[¶11] ASA Mahoney informed the presiding judge:
" Since that time, judge, there's been a cover up launched in the Park Ridge Police Department from the then police chief ***, all the way down to the watch commander and the acting chief of the Park Ridge Police Department. We had a sergeant of police *** come
forward and tell us basically everything that happened, although he was not a witness to most of what occurred, several of these officers out cried [ sic ] to him, they have now been subpoenaed to the Grand Jury with really disturbing results. *** [T]he first officer on the scene who pushed Leavitt off [the first juvenile victim], she came in the Grand Jury and took the fifth; she refused to answer questions, she was represented by the law firm ***.
Subsequent to that, every witness that we have had subpoenaed to come to the Grand Jury has been represented by the same law firm, we-and ***, who is a police officer present for the beatings and ***, another police officer who was present for the beatings, testified in the Grand Jury that nothing occurred, which is perjurious ***.
And I should point out that this did not come to us until about February of 2009 through an anonymous letter; so, things didn't even really start rolling until March or April; so, it's been very condensed, condensed investigation. We have had to move as quickly as possible. We brought this in house, we've had our own investigators doing it, but we're partnering up with the F.B.I. as well, and the investigation is ongoing into the charges of perjury, subornation of perjury, obstructing justice and conspiracy to commit all of those offenses. We're forced to indict Officer Leavitt as the statute of limitations - - [ sic ]
COURT: Lieutenant Leavitt.
MR. MAHONEY: I'm sorry, Lieutenant Leavitt, as the statute of limitations runs out on October 27th, that being tomorrow, the incident having occurred early morning hours of October 28th, 2006; so, we have had to indict him.
We are asking you, judge, to seal this indictment because in the interest of justice, I think pretty compellingly point that this open investigation should be allowed to continue, and I don't think that in the end there will be any prejudice to any of the parties.
There's been a civil lawsuit pending in this matter throughout, so, the evidence has been alive and been kicking around for two years and nobody's memory, you know, on the defense side as opposed is getting short; so weighing all those factors, judge, and under [section] 112-6(b), I believe it is, you have the authority to order the sealing of the indictment and through this motion the People of the State of Illinois ask you to do so today.
[ASA] BLAKEY: Additionally, [Y]our Honor, the charges that we're seeking, the return on, are inextricably intertwined with the ongoing covert phases of the investigation as to the obstruction of justice and perjury counts; so, we would not be able to return a simple indictment on these and then a superseding indictment without compromising the investigation in the absence of a sealing order."
[¶12] The presiding judge rendered the following finding:
" The Court finds and accepts the claim made in this motion, due to the sensitive nature of this investigation, certainly sensitive as pointed out by Mr. Mahoney and Mr. Blakey, it would serve in the interest of justice, the bill of indictment against the defendant, Lieutenant Leavitt, not be made public until such time as co[-]conspiring defendants are in custody. And on that basis, I will sign this order and direct that copies of this motion be held by the State's Attorney's Office as well as the order, and that this transcript be sealed and not divulged to anyone."
[¶13] In reply to the State's response to his motion to dismiss the indictment, Leavitt maintained the prosecution of this matter had not commenced within the three-year statute of limitations. Leavitt, relying on federal authority, argued an indictment may be kept secret for a limited time period but only where the government establishes a legitimate prosecutorial objective for sealing his indictment. Leavitt asserted that the State here was merely seeking to build a stronger case against him, which was not a legitimate prosecutorial objective for sealing his indictment. Leavitt also requested an evidentiary hearing on his motion.
[¶14] On November 16, 2011, an evidentiary hearing on the motion to dismiss the indictment commenced. Leavitt testified on his own behalf to the following facts. He is currently a lieutenant with the Park Ridge police department. In 2009, he and other police officers were involved in a federal civil case regarding the October 2006 incident. The city of Park Ridge hired attorney Michael Kujawa to represent the officers, including Leavitt, in that suit. In September 2009, he attended a settlement conference with all parties to the suit. At this point, Leavitt was not aware of any criminal charges against him. At the settlement conference, an attorney for one of the juveniles stated she " had been assured by her sources within the Cook County State's Attorney's Office that charges in this case were imminent, criminal charges were imminent." As a result of those statements, he contacted his defense counsel.
[¶15] In October of 2009, after the statute of limitations had passed, Leavitt was " greatly relieved." He continued his work with the Park Ridge police department and took over the command of the Northern Illinois Police Alarm System Emergency Services Team (SWAT team). Leavitt waited to remodel his home until after the statute of limitations expired. In 2010, the addition to his home was completed and resulted in a higher mortgage on his home. Leavitt would not have incurred this debt had he known he would be charged with a crime. After he was arrested, Leavitt resigned from the SWAT team to avoid any additional embarrassment.
[¶16] On cross-examination, Leavitt testified that in addition to working as a lieutenant for the Park Ridge police department, he maintained four other jobs. In February 2009, he heard rumors that his coworkers at the Park Ridge police department were being called to testify in front of the grand jury regarding the October 2006 incident. He acknowledged that he actually did not resign from the SWAT team after his arrest, but changed his position from the commander to lead team commander.
[¶17] The defense rested and the State called ASA Mahoney, a deputy supervisor of the " public corruption/financial crime/mortgage fraud and money laundering unit." In February of 2009, he received an anonymous letter which stated that within the Park Ridge police department there was " a scandal and a cover-up regarding two 15 year olds who had been arrested, handcuffed, and then beaten." ASA Mahoney learned of the federal lawsuit and contacted one of the plaintiff's counsel. Plaintiff's counsel confirmed all the facts that were stated in the letter.
[¶18] ASA Mahoney then served a subpoena on plaintiff's counsel and received the nonprivileged portion of her file, which included statements in the form of deposition transcripts of the two juveniles. Pursuant to subpoena, ASA Mahoney interviewed an officer who had not witnessed the beatings, but was the " outcry witness"
for the officers who did. This officer's interview was consistent with his later testimony before the grand jury in October 2009. ASA Mahoney then interviewed three other officers who were eyewitnesses to the incident. One declined to testify before the grand jury. ASA Mahoney believed the other two witnesses perjured themselves with their grand jury testimony.
[¶19] Thereafter, ASA Mahoney enlisted the Federal Bureau of Investigation (FBI) to assist in the investigation, as he believed the incident amounted to a civil rights case. The FBI initiated its investigation in September 2009. The investigation revealed that Kujawa, a former Park Ridge police officer, held a " ducks-in-a-row meeting" in response to the filing of the civil lawsuit in 2007, a year and a half before the criminal investigation had commenced. Everyone who was on shift on the night of the October 2006 incident was gathered into a room with several members of their command staff and Leavitt. According to ASA Mahoney's testimony, Kujawa looked at everyone in the room and said, " Leavitt says he never touched the kid." ASA Mahoney further stated Kujawa said, " anybody got anything different to say or words to that effect." ASA Mahoney described the meeting as, " kind of intimidating and that was the beginning of the conspiracy."
[¶20] Regarding the motion to seal the indictment, ASA Mahoney testified he presented the motion to the presiding judge in his chambers. ASA Mahoney explained that the reasons for the State's request to seal the indictment were set forth in both the written motion and during the oral presentation before the presiding judge. ASA Mahoney testified he informed the judge:
" We had come into this case very, very late in time because nobody came forward and it was only on accident that we learned about it. And so we only had ...