Quick Take on Illinois Supreme Court Opinion Issued Thursday, October 3, 2024
A leading appellate attorney reviews the Illinois Supreme Court opinion handed down Thursday, October 3.
People v. Basile, 2024 IL 129026
By Kerry J. Bryson, Office of the State Appellate Defender
Daniel Basile, III, was charged with two counts of criminal sexual assault, alleging that the acts were committed while the complainant was either unable to understand the nature of the act or was unable to give knowing consent. In the circuit court, Basile obtained dismissal of the indictment on the basis that the State presented misleading testimony to the grand jury.
Specifically, during the grand jury proceedings, a juror noted that the complainant was extremely intoxicated during the alleged incident and asked “how do we know that the person [the complainant] claims did this to her did it to her?,” the officer responded, “He told me he did.” Immediately preceding this exchange, the juror had first asked whether there was “any other evidence that he actually did this to her,” apart from the complainant’s statement. Basile argued that the officer’s response that “he told me he did,” falsely suggested that Basile confessed to committing a sexual assault when Basile actually denied the complainant’s allegations and told the officer that the sexual encounter was consensual. The State countered that the juror’s question concerned only the issue of identity, not the issue of consent, and thus the officer’s statement was not false or misleading but was simply meant to convey that Basile told the officer that he had sex with the complainant. The circuit court disagreed, holding that the officer’s answer “essentially informed the grand jury that defendant confessed” to sexual assault. The prosecutor’s failure to correct this misleading testimony so prejudiced the grand jury proceeding that it required dismissal of the indictment with prejudice. The appellate court affirmed on the basis that the State obtained the indictment through prosecutorial misconduct that infringed on Basile’s due process rights.
The Supreme Court, in a 4-to-3 decision, reversed the lower courts. While a court has the power to dismiss an indictment where there has been a clear denial of due process, this power is to be used sparingly. A defendant seeking dismissal on due process grounds bears the burden of showing that the denial of due process is “unequivocally clear” and that he suffered “actual and substantial prejudice.” Basile did not meet that burden here.
A denial of due process based on prosecutorial misconduct in grand jury proceedings may be found where the prosecution deliberately or intentionally misled the grand jury, used known perjured or false testimony or presented deceptive or other inaccurate evidence. Prejudice under those circumstances requires a showing that the due process violation substantially influenced the decision to indict or where there is grave doubt that the decision to indict was free from the substantial influence of the due process violation.
The majority found that the record here failed to establish an unequivocally clear due process violation. The officer testified about the complainant’s allegations, including that she was heavily intoxicated, Basile drove her home, she collapsed on her couch after telling Basile she was “good,” and Basile then removed her pants and underwear and had sexual intercourse with her, twice, while she was in and out of awareness due to her intoxication. This was sufficient for the grand jury to vote to return a true bill. The single grand juror’s subsequent questions about whether there was “any other evidence,” and the officer’s responses, did not rise to the level of an unequivocally clear due process violation. It was not even clear whether the juror was asking whether there was other evidence that the assault had happened or other evidence that it was Basile who had sex with the complainant. Given this uncertainty, it could not be said that the officer’s testimony was misleading, let alone that it rose to the level of a due process violation.
The majority went on to note that even if Basile could show an unequivocally clear due process violation, he could not show actual and substantial prejudice. A grand jury need not be unanimous; it is enough that nine of the 12-to-16 grand jurors present concur in the decision to return a true bill. Given the sufficiency of the complainant’s allegations, alone, coupled with the fact that only a single grand juror posed additional questions to the officer, the record does not support a conclusion that the grand jury would not have indicted Basile but for the officer’s responses. Accordingly, dismissal was improper.
Justice O’Brien authored a dissent, joined by Justices Neville and Cunningham, concluding that the grand jury proceedings here violated Basile’s due process rights. The dissent noted that after the officer responded that “he told me he did it,” the questioning juror stated, “that’s all I needed to know.” This suggested that the officer’s misleading response was what convinced the grand jury to return a true bill. And, while the majority found no need to reach the issue of whether misleading testimony must be intentional to require dismissal, the dissent would have held that intentionality is not required. Whether intentional or not, the grand jury was presented misleading or inaccurate information, without correction. The dissent would have upheld the dismissal of the indictment, with prejudice, to serve as a deterrent to future grand jury presentments based on misleading evidence.