{ "id": 3522239, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES BARTON, Defendant-Appellee", "name_abbreviation": "People v. Barton", "decision_date": "1984-03-01", "docket_number": "No. 83\u2014386", "first_page": "1079", "last_page": "1085", "citations": [ { "type": "official", "cite": "122 Ill. App. 3d 1079" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "440 N.E.2d 924", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "928" } ], "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 619", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5450584 ], "pin_cites": [ { "page": "624" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0619-01" ] }, { "cite": "449 U.S. 361", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716096 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "366" }, { "page": "569" }, { "page": "668-69" } ], "opinion_index": 0, "case_paths": [ "/us/449/0361-01" ] }, { "cite": "589 F.2d 285", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 827113 ], "weight": 4, "pin_cites": [ { "page": "298-99" }, { "page": "299" }, { "page": "299" } ], "opinion_index": 0, "case_paths": [ "/f2d/589/0285-01" ] }, { "cite": "297 N.E.2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "145" } ], "opinion_index": 0 }, { "cite": "54 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933860 ], "year": 1978, "pin_cites": [ { "page": "389" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0384-01" ] }, { "cite": "437 N.E.2d 396", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "402" } ], "opinion_index": 0 }, { "cite": "107 Ill. 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App. 3d", "case_ids": [ 3074689 ], "pin_cites": [ { "page": "135-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0133-01" ] }, { "cite": "367 N.E.2d 1244", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1246" }, { "page": "1247" } ], "opinion_index": 0 }, { "cite": "67 Ill. 2d 449", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5812072 ], "weight": 3, "pin_cites": [ { "page": "455-56" }, { "page": "456-57" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0449-01" ] } ], "analysis": { "cardinality": 732, "char_count": 15191, "ocr_confidence": 0.79, "pagerank": { "raw": 1.3302343709538865e-07, "percentile": 0.6287663875384241 }, "sha256": "556f0c4db2bf5f8a90f82927b8fae7fb43c9245ed1e0cbad873e68375d13e2d7", "simhash": "1:aaae7566fa574df0", "word_count": 2441 }, "last_updated": "2023-07-14T18:37:51.597464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES BARTON, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE KASSERMAN\ndelivered the opinion of the court:\nAn indictment charging defendant, James Barton, with two counts of bribery, one count of conspiracy to commit bribery, and one count of official misconduct was returned by the grand jury of Madison County. On motion of defendant, the trial court entered an order dismissing the indictment because of prosecutorial misconduct. The State appeals.\nThe charges against defendant were based on allegations that defendant, in his capacity as Madison County Supervisor of Assessments, had accepted $1,000 from William Nichols and gave $500 of the money to Walter Greathouse, a member of the Madison County Zoning Board of Appeals, in order to obtain Greathouse\u2019s approval of a special-use permit requested by Mr. Nichols.\nDefendant filed a pretrial motion requesting suppression of statements made by him on November 5, 1982, to an assistant State\u2019s Attorney and an Illinois Division of Criminal Investigation agent. The motion alleged that defendant had been denied his constitutional right to counsel. The trial court granted defendant\u2019s motion and entered an order suppressing the statements made by defendant.\nSubsequently, defendant filed an amended motion to dismiss the indictment alleging, inter alia, that misconduct on the part of the Madison County State\u2019s Attorney had deprived him of due process of law. At the hearing on the motion to dismiss, Marvin Darling, a former administrative assistant of the Madison County State\u2019s Attorney, Don W. Weber, testified that in May 1981, Mr. Weber stated that he would get defendant. The parties subsequently stipulated to the introduction of the following evidence and exhibits into evidence:\nMr. Weber was elected State\u2019s Attorney of Madison County on November 4, 1980, and, a few days later, declared that the public wanted a prosecutor like \u201cAttilla the Hun.\u201d Mr. Weber also pledged to investigate defendant.\nOn March 30, 1981, after a grand jury had failed to return an indictment against defendant for making improper property assessments, Mr. Weber publicly commented that \u201c[tjhere may not be criminal activity ***, but there might be grounds for dismissal or other disciplinary action.\u201d On May 15, 1981, Mr. Weber stated that he would comply with a recommendation made in the grand jury report that he release to the Madison County Board a report made by the Illinois Division of Criminal Investigation concerning defendant\u2019s activities in office.\nOn November 12, 1982, the newspaper media became aware of the fact that a new grand jury investigation of defendant was being conducted. That same day, defendant gave an interview to a newspaper reporter who had learned of the grand jury investigation. On November 16, 1982, Mr. Weber publicly announced that he would ask the grand jury to indict defendant for conspiracy to commit bribery and stated that William Nichols had told investigators that he gave defendant money for the purpose of influencing a zoning board of appeals decision. The next day, further comments from the State\u2019s Attorney were published concerning defendant\u2019s case.\nOn November 18, 1982, Mr. Weber told reporters that the indictment he sought against defendant for conspiracy to commit bribery was \u201cnot an iffy case.\u201d The State\u2019s Attorney commented to the press about the testimony of William Nichols and stated that defendant \u201cnever was cleared of impropriety despite the finding of insufficient evidence\u201d by the 1981 grand jury. On November 19, 1982, the State\u2019s Attorney suggested publicly that defendant was a \u201ccorrupt official.\u201d A few days later, defendant proclaimed his innocence in a newspaper interview. On November 24, 1982, there were a number of newspaper articles concerning Illinois Division of Criminal Investigation inquiries regarding defendant\u2019s alleged involvement in the bribery scheme.\nOn December 1, 1982, Mr. Weber again publicly urged that defendant be fired as Madison County Supervisor of Assessments. The following day, Mr. Weber urged that the defendant be \u201ccanned\u201d prior to trial. When a reporter asked whether defendant should be considered innocent prior to trial, Mr. Weber replied that \u201c[pjeople just don\u2019t understand the law.\u201d On December 6, 1982, a newspaper acknowledged that defendant\u2019s statements which were later suppressed were included in the discovery materials made available to the press by the prosecution. On December 16, 1982, Mr. Weber announced to the press his frustration with the Madison County Board\u2019s failure to fire defendant and said that he would seek an additional indictment against defendant for official misconduct. A day later, while commenting on the additional charge being sought against defendant, the State\u2019s Attorney said, \u201cI want to make sure that I get him.\u201d\nIn early January 1983, Mr. Weber mailed a packet of material to the Madison County Board. The materials sent included Illinois Department of Criminal Investigation reports, a memorandum concerning dismissal procedures, and polygraph results suggesting deception on the part of Walter Greathouse. The incident and a description of the items mailed were reported in the newspaper.\nOn February 18, 1983, Mr. Weber was present at a public meeting attended by approximately 150 people. At this meeting Mr. Weber made the following remarks:\n(1) \u201cThe more people we get involved in the Barton investigation, the more we can get them worked up.\u201d\n(2) \u201cBarton is presumed to be innocent and I do not want to prejudice his trial.\u201d\n(3) \u201cI told you a year and a half ago how I felt about this whole situation.\u201d\n(4) \u201cBarton is just like that school teacher, Van Hook [who had been recently convicted of taking indecent liberties with a child].\u201d\n(5) \u201cBarton\u2019s trial is my number one priority along with the Prante case, now that Van Hook\u2019s case is over with.\u201d\nOn March 8, 1983, the personnel committee of the Madison County Board held a closed meeting concerning defendant. At this meeting, Assistant State\u2019s Attorney Keith Jensen addressed the committee. Mr. Jensen said that defendant was \u201ctelling the police one thing and turning around in front of the newspapers, he\u2019s a chameleon. He\u2019s innocent of anything. He wants his trial, he wants to hide behind the Fifth Amendment, he wants all the advantages he can, but he is conveying a different impression to those people than he is to you people.\u201d Following this meeting, Mr. Weber told reporters that the Madison County Board should fire defendant.\nOn March 12, 1983, a benefit dance was sponsored by the Illinois Division of Criminal Investigation. About 300 persons attended. During the dance, the State\u2019s Attorney made unspecified comments concerning defendant over the public address system. The comments were made in the context of a contest conducted by the State\u2019s Attorney to determine by crowd applause which statements made by public officials and recently convicted defendants should receive an award for the \u201cdumbest statement\u201d of the year.\nOn March 17, 1983, the State\u2019s Attorney publicly criticized the members of the Madison County Board for not firing defendant. Mr. Weber reiterated that defendant was his number one priority and again compared defendant to Van Hook, the man recently convicted of indecent liberties with a child.\nOn March 22, 1983, defendant\u2019s motion to suppress the statements he made on November 5, 1982, was heard. On March 25, 1983, Mr. Weber told the press that he had removed himself as prosecutor of defendant\u2019s case and suggested that defense counsel was attacking him as a \u201ctypical defense tactic.\u201d After the trial court entered an order on March 29, 1983, suppressing defendant\u2019s statements, the State\u2019s Attorney publicly derided the trial judge, stating that the judge was \u201cnot now, nor has he ever been a friend to the prosecution. Needless to say, he is not my favorite judge.\u201d\nIn an April 6, 1983, newspaper article, the State\u2019s Attorney was reported to have defended the tactics used to obtain defendant\u2019s statement and stated that \u201cclever criminals require clever tactics to catch them.\u201d The next day, an amended motion to strike defendant\u2019s motion to dismiss was delivered to defense counsel by an assistant State\u2019s Attorney. Defense counsel was informed that the amended motion to strike, which alleged numerous violations of the Code of Professional Responsibility for lawyers (87 Ill. 2d R. 1 \u2014 101 et seq.) on the part of defendant\u2019s attorney, would be filed in the trial court if the defendant\u2019s attorney proceeded to a hearing on the motion to dismiss.\nOn May 11, 1983, the trial court issued an order dismissing all counts against defendant on the grounds of prosecutorial misconduct. The trial court\u2019s order concluded that defendant had been denied due process, that defendant\u2019s right to counsel of his choice had been seriously impaired, that fundamental fairness had been violated, and that the entire course of the prosecutor\u2019s conduct had caused actual and substantial prejudice to defendant. The State has perfected this appeal in which we are asked to review the propriety of the trial court\u2019s dismissal of the indictment.\nIn the order of dismissal, the trial court did not specify what due process right or rights it felt had been violated. We agree with the State, however, that two due process grounds appear applicable: (1) prejudicial pretrial publicity generated by the State\u2019s Attorney; and (2) denial of defendant\u2019s right to counsel.\nAs defendant correctly notes, the trial court has the inherent authority to dismiss an indictment where there has been a clear denial of due process. (People v. Lawson (1977), 67 Ill. 2d 449, 455-56, 367 N.E.2d 1244, 1246.) It is also true, however, that this power should be utilized with restraint and a due process violation will warrant dismissal of an indictment only if the violation is clear and can be ascertained with certainty. (People v. Lawson (1977), 67 Ill. 2d 449, 456-57, 367 N.E.2d 1244, 1247; People v. Schroeder (1981), 102 Ill. App. 3d 133, 135-36, 429 N.E.2d 573, 576.) To support a dismissal of a criminal charge because of prosecutorial misconduct, the alleged misconduct must result in actual and substantial prejudice to a defendant. (People v. Lawson (1977), 67 Ill. 2d 449, 367 N.E.2d 1244; People v. Mack (1982), 107 Ill. App. 3d 164, 171, 437 N.E.2d 396, 402.) Applying this standard to the case at bar, we find that the prosecutor\u2019s conduct in the instant case does not require dismissal of defendant\u2019s indictment.\nAlthough there was ample evidence of potentially adverse publicity, such proof alone does not necessarily establish prejudice since a defendant can receive a fair trial by impartial jurors despite harmful publicity. (People v. Torres (1973), 54 Ill. 2d 384, 389, 297 N.E.2d 142, 145; United States v. Stanford (7th Cir. 1978), 589 F.2d 285, 298-99.) In Stanford, a case dealing with a similar due process contention regarding adverse publicity, the court observed that there are more traditional procedures for avoiding prejudice due to adverse publicity. These procedures include the voir dire process, a motion for a continuance and a motion for a change of venue. (United States v. Stanford (7th Cir. 1978), 589 F.2d 285, 299.) In the case at bar, defendant failed to pursue any of these avenues of relief. Defendant made no motion for a change of venue nor did he move for a continuance. Further, the trial court dismissed the indictment prior to trial where the voir dire examination of prospective jurors would have been conducted. In doing so, the trial court could not have determined whether any actual prejudice to the defense resulted from adverse publicity generated by the prosecution. United States v. Stanford (7th Cir. 1978), 589 F.2d 285.\nAdditionally, we note that the trial court has the statutory power to appoint a special prosecutor whenever a prosecutor \u201cis interested in any cause or proceeding\u201d (Ill. Rev. Stat. 1981, ch. 14, par. 6). In the present case, the trial court\u2019s concern about the conduct of the State\u2019s Attorney could have been eliminated by the\"appointment of a special prosecutor with no personal interest in defendant\u2019s case.\nIn view of the evidence and the availability of procedures to offset prejudice due to adverse publicity, we conclude that the trial court\u2019s dismissal of defendant\u2019s indictment was erroneous. The trial court\u2019s conclusion that actual and substantial prejudice to defendant resulted from the publicity was speculative and did not justify punishing society for the misconduct of a prosecutor. See United States v. Stanford (7th Cir. 1978), 589 F.2d 285, 299.\nThe alternative due process ground for dismissal, the denial of defendant\u2019s right to counsel at the November 5, 1982, interview, is also not a compelling reason to dismiss the defendant\u2019s indictment in the case at bar. The proper remedy for infringement of the right to counsel is suppression of the evidence obtained in violation of that right, not dismissal. (United States v. Morrison (1981), 449 U.S. 361, 366, 66 L. Ed. 2d 564, 569, 101 S. Ct. 665, 668-69; People v. Amft (1982), 109 Ill. App. 3d 619, 624, 440 N.E.2d 924, 928.) Since the statements allegedly illegally obtained from defendant were in fact suppressed, defendant has failed to demonstrate prejudice as a result of prosecutorial misconduct in denying defendant the right to counsel.\nAlthough we have determined that there was insufficient proof that the conduct of the State\u2019s Attorney resulted in the denial of due process so as to warrant a dismissal of the criminal proceedings in the inst\u00e1nt case, we emphasize that we do not condone the prosecutor\u2019s behavior. The actions of Mr. Weber in these proceedings were wholly unjustified and inappropriate. While we applaud the vigorous prosecution of crime, we are appalled when, as here, a prosecutor becomes a persecutor. If the conduct of a prosecutor is the result of any motive other than the fair and impartial prosecution of alleged crimes, such conduct must not be tolerated by a court.\nThe conduct of the prosecutor in the case at bar was, to say the least, reprehensible. The question of the sanctions to be applied as punishment for such conduct and to ensure that it is not repeated is not before this court. However, the interest of the public in the impartial prosecution of alleged crimes dictates that this cause be reversed and remanded to the trial court for further proceedings free of the acrimony and apparent vendetta that characterized the proceedings which prompted the trial court to dismiss the indictment.\nFor the foregoing reasons, the judgment of the circuit court of Madison County is reversed and this cause is remanded for further proceedings consistent with this opinion.\nReversed and remanded.\nJONES and KARNS, JJ., concur.", "type": "majority", "author": "JUSTICE KASSERMAN" } ], "attorneys": [ "Don W. Weber, State\u2019s Attorney, of Edwardsville (Stephen E. Norris and Karen L. Stallman, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.", "J. William Lucco, of Mudge, Riley & Lucco Law Offices, of Edwardsville, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JAMES BARTON, Defendant-Appellee.\nFifth District\nNo. 83\u2014386\nOpinion filed March 1, 1984.\nRehearing denied April 5, 1984.\nDon W. Weber, State\u2019s Attorney, of Edwardsville (Stephen E. Norris and Karen L. Stallman, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People.\nJ. William Lucco, of Mudge, Riley & Lucco Law Offices, of Edwardsville, for appellee." }, "file_name": "1079-01", "first_page_order": 1101, "last_page_order": 1107 }