author:
PRESIDING JUSTICE RAKOWSKI
      JUSTICE EGAN,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PATRICIA BASS, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—3196
    Opinion filed September 27, 1991.

      EGAN, J., specially concurring.

      Michael J. Pelletier and Gordon H. Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Mary Erigid Kenney, and Michael Brychel, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

Defendant-appellant Patricia Bass appeals her convictions for armed robbery and murder, for which, after a jury trial, she was sentenced to a term of imprisonment of 30 years. Defendant raises several issues on appeal, namely: that the trial court erred in denying defendant’s motion to quash arrest due to a lack of probable cause because the police knew that their search warrant applied to two different apartments at the premises and/or the police had an insufficient basis to arrest defendant; that the State provided insufficient race-neutral reasons for exercising peremptory challenges under Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712; that defendant was denied a fair trial by (a) argument and testimony relating to police reports and an interview with an individual implicating defendant in the crimes for which defendant was tried, (b) courtroom tactics by the State unnecessarily suggesting a gang connection to the prosecution, and (c) the allowance of “mugshots” of codefendants to go to the jury room during jury deliberation; that defendant was denied a fair trial by the State’s introduction of testimony about the victim’s ethnic background and about the victim’s “American dream”; and that defendant’s sentence for murder was excessive.

Defendant was, along with Earl Harris, Jr., and Kevin Walton, charged with the armed robbery of Maciej Grzyna and the murder of Wojtek Rutkowski. Defendant was tried separately from both these codefendants and another codefendant, Michael Boyd.

Prior to defendant’s trial, a hearing was held on defendant’s motion to quash the arrest. The witnesses at the hearing were defendant, her sister Annette and Officer Vukonich. While defendant denied being in the unit of the building where Vukonich said she was arrested, the trial court disbelieved defendant’s testimony, as defendant was admittedly drunk at the time. Vukonich testified about the obtaining and execution of the search warrant as follows.

Vukonich was assigned to the Gang Crimes North Unit of the Chicago police department. He testified that in October of 1986 his partner obtained a warrant to search the “first floor apartment at 2712 West Evergreen,” in Chicago, Illinois. The search warrant was for a sawed off shotgun and an individual named Mike. The following colloquy took place during Vukonich’s testimony.

“DEFENSE COUNSEL: Q. Officer, I would like to take a look at People’s Exhibit Number 1 *** the search warrant *** On the front page, it says first floor apartment, at 2712 West Evergreen, is that correct?
A. That is correct.
Q. It doesn’t say first floor rear apartment, does it[?]
A. No, it does not.
Q. When you went there, you noticed that there was also a first floor front apartment, didn’t you?
A. Yes, sir.
Q. So there is [sic] two apartments on the first floor of that address, isn’t [sic] there?
A. Yes.
Q. There is a rear apartment ***. There is a front apartment ***.
A. Yes, sir.”

It was the rear apartment that Vukonich searched. Vukonich testified that when he and other police officers went to the rear apartment, they announced that they were police officers and immediately heard a female voice from within the apartment shout “Police, run.” At this point, an officer smashed a hole in the panel of the door, and Vukonich looked in and saw defendant Bass and another individual in the kitchen. The officers then smashed the door open, and after some commotion, arrested defendant, who had attempted to flee, and the man they had seen in the kitchen with defendant. In connection with the execution of the warrant, a total of 10 people were arrested, some of whom had fled to a second-floor apartment. Defendant was arrested for and charged with obstruction of service and was taken to the police station.

Defendant had testified at the hearing that she arrived at the building, which was owned by a friend, at about 7 a.m. The execution of the warrant took place at approximately 10 a.m. The trial judge denied defendant’s motion to quash the arrest.

Following pretrial motions, the jury was selected and sworn. During jury selection, defense counsel objected to the State’s use of peremptory challenges to exclude black women jurors. (Defendant is black as well.) Prior to the commencement of the trial, but after the jury had been chosen, defense counsel stated that during voir dire he noticed that the State’s Attorney’s cart was facing the jury and that on the front of the cart the codefendants’ names appeared, as well as the words “Black Gangster Disciples” in red letters. Defense counsel asserted that the jury was able to see this. The trial judge ordered the State to turn the cart around, to which the assistant State’s Attorney responded that the cart was already turned around.

At trial, Maciej Grzyna testified (through the aid of an interpreter, as Grzyna spoke Polish) that on the evening of the occurrence, he was working, alone. The owner of the bar, Wojtek Rutkowski and his wife, Halina, were sleeping in their apartment in the back of the bar. There were two customers in the bar at about 2 a.m. At this time, Grzyna heard some glasses breaking as he was approaching the cash register. He turned around and saw a man standing on the bar. The man grabbed his head and held a gun to it. A woman joined the man, and they began pushing Grzyna. After he had been pushed from the cash register, the woman removed the cash from the register. The gunman backed away from the bar at this time. Grzyna saw the silhouettes of two other people around the front door of the tavern.

As the gunman was backing away from the bar, Grzyna testified, Wojtek Rutkowski came out of the rear apartment area dressed in his underwear. Rutkowski yelled “Police, Police,” and the gunman then shot Rutkowski twice. The woman was still taking the money from the register as the shots occurred. Rutkowski died as a result of the gun wounds.

Following the testimony of Grzyna, a further discussion between counsel and the trial judge took place regarding the cart with the words “Black Gangster Disciples,” at which time defense counsel again stated that the cart had not been turned around until after the jury had been selected. Defense counsel at this time brought another matter to the court’s attention — the fact that a blue notebook was on the State’s Attorney’s table which had white letters saying “Gangs Prosecution” on it. The court indicated that he could not see it from the court’s vantage point and doubted that anyone had seen it, although defense counsel asserted that it could be seen clearly from the jury box. The prosecutors agreed that the case was not a gang case, but stated that the book had been “open” during the proceedings. The trial judge ordered the prosecutors to remove the book.

Next, Halina Rutkowski, the victim’s wife, testified. Previous to trial, defendant argued a motion in limine to limit or exclude testimony relating to how the Rutkowskis came to the United States, how they met, their courtship and the like. The motion was denied with the admonition from the trial judge to the State to keep such testimony brief. Halina Rutkowski did in fact testify relating to her background coming to the United States from Poland, meeting her husband and to the fact that her husband dreamed of owning a bar, worked to purchase and did purchase the bar where the robbery and murder took place. The State further introduced testimony from several police officers and detectives who were summoned to the tavern shortly after the incident.

The State, in its case in chief, introduced certain testimony relating to the investigation of the incident. Officer Vukonich again testified. He related that he was assigned to the gang crimes division of the Chicago police department, and he related defendant’s arrest. Next, Detective Bogucki testified. He testified that he and his partner were assigned to conduct a follow-up investigation relating to the instant case. He stated that he started out the investigation by reviewing a series of police reports involving armed robberies which were occurring in the northwest and west side of the city. Bogucki stated that in reviewing these reports, he was able to come up with the name Patricia Bass relating to his investigation. Bogucki further testified that he spoke with one Willie Anderson and that after this conversation, the search for defendant, as well as codefendants, “intensified.”

On October 20, 1986, Bogucki was informed that defendant was in custody. At about 5 p.m. he interviewed defendant. After giving defendant her Miranda warnings, defendant made the following oral statement. On the date of the incident, defendant was with three other men — “Michelob,” “Country” or “CC,” and Earl. They went to the victim’s tavern. Earl entered the bar first and held a gun to the bartender’s head while defendant emptied the cash register. The victim came into the bar from the back door and said something about the police, at which point Earl shot the man twice. The robbers then fled the scene and divided the proceeds.

Bogucki then testified, over objection, that he conducted an interview with Earl Harris. The court limited the testimony to show police investigation of the incident, and the jury was instructed to this effect. Bogucki related that after speaking with Harris, officers from gang crimes were contacted and asked if they could locate a suspect by the name of Kevin Walton, also known as “Country.” When the State attempted to elicit from Bogucki the reason why he contacted gang crimes in an attempt to find Walton, and what Bogucki instructed gang crimes to do in regard to Walton, defense counsel’s objections were sustained.

Bogucki further testified that he and Assistant State’s Attorney Shelly Sutker had a conversation with defendant at about 9:45 p.m., and that a court reporter transcribed defendant’s confession at about midnight. Further, at about 3 a.m., a patron from the bar who was present the night of the incident was brought to the police station. Defendant identified the patron as being present during the incident.

Sutker also testified as to the taking of the confession. The transcribed confession essentially mirrored the oral confession. Also, Sutker testified that defendant identified photographs of the codefendants.

Defendant testified on her own behalf. She denied participating in the robbery of the tavern and denied being with the men who perpetrated the robbery that evening. Defendant further testified that she had heard about the robbery and shooting while she was in custody with the codefendants (who had also been arrested when defendant was arrested). She admitted that the codefendants were friends of hers. Defendant related that the reason she gave the confession was that a police officer, who was Caucasian, in his mid-thirties and about 6 feet tall, had threatened to take her children away if she did not confess. Defendant admitted on cross-examination that the codefendants did not provide the details to the incident that she provided in her confession.

Despite the trial court’s initial questioning of the value of the mugshots of the codefendants being allowed into the jury room, the trial court allowed this evidence to go to the jury on the basis of the mugshots being “part and parcel” of the confession.

The first issue we address is whether the trial court erred in denying defendant’s motion to quash defendant’s arrest due to: (a) the police, before executing the warrant, discovering that the warrant applied to two units of the first floor; or (b) there being an insufficient basis for the police to connect defendant as being the individual who stated “Police, run,” when the police began executing the warrant.

Defendant’s second contention that it was error not to grant the motion to quash arrest — because the police did not have a sufficient basis to believe that defendant was the person who shouted “Police, ran,” as the police were executing the warrant — is unconvincing. Defendant stresses that the police did not see defendant say this, and there were several other females at the building who could have said it. Vukonich, however, testified that he heard the warning, and that when the door was immediately smashed, he saw defendant standing there in the kitchen. This is a fact question that was the subject of the initial hearing as well as a motion to reconsider. The trial judge’s determination should not be reversed, as a finding of probable cause will be reversed only when it constitutes manifest error. (People v. Pugh (1989), 187 Ill. App. 3d 860, 867, 543 N.E.2d 875.) Here, we cannot say that the facts and circumstances known to the arresting officers would not lead to their reasonably prudent belief that defendant was obstructing service of the warrant. See People v. Montgomery (1986), 112 Ill. 2d 517, 525, 494 N.E.2d 475.

Defendant’s other contention of error in the denial of the motion to quash arrest requires more lengthy discussion. This contention is that the search was constitutionally infirm due to the fact that the warrant did not specify which apartment on the first floor was to be searched. Initially, we address the State’s argument that defendant has waived this issue. The record reveals that defendant never argued to the trial court that the search was invalid for this reason. The motion to quash defendant’s arrest does not raise this contention. Even after the testimony came out at the hearing, defendant never argued the constitutional invalidity of the search in argument or on the motion for reconsideration of the denial of the motion. To be sure, defense counsel in argument did refer to the fact that the warrant did not specify which first-floor apartment was to be searched. Defendant never, however, presented the argument she now makes.

Moreover, defendant’s motion for a new trial simply read as follows:

“The Trial court erred in denying defendant’s pre-trial motion to suppress her arrest, specifically but not exclusively, the evidence showed that [the] police had no basis to arrest defendant and take her to the police station when there were other females inside the residence and they could not identify defendant’s voice as the voice that stated police were at the front door. Further, the comment attributed to defendant was not sufficient to establish obstruction of process. Also, the time defendant was held at the police station on said charge without being taken before a judge was so long as to require suppression of her subsequent confession.”

As can be seen, defendant never raised the challenge to the denial of the motion to quash in the post-trial motion that she now raises.

It is well settled that in order to preserve an issue for appeal, both an objection at trial and a written post-trial motion raising the issue are required. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) Here, there was no objection on the ground defendant now raises. To be effective, moreover, “a post-trial motion must set forth with adequate specificity the errors relied upon.” (People v. Buckner (1984), 121 Ill. App. 3d 391, 396, 459 N.E.2d 1102.) The post-trial motion in this case is insufficient to preserve the issue for appeal as well, as while it raised a number of grounds in favor of suppressing defendant’s confession, it did not specifically raise the ground defendant now argues.

Defendant, however, argues that we should address the issue as plain error. Under Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)), however, “fp]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Courts may consider plain error “where the record clearly shows *** an alleged error affecting substantial rights.” (People v. Young (1989), 128 Ill. 2d 1, 46, 538 N.E.2d 461.) This rule serves the dual purposes of “correcting serious injustices” and preserving “the integrity and reputation of the judicial process.” (Young, 128 Ill. 2d at 46.) Therefore, the rule applies only “when the question of guilt is close and the evidence in question might have significantly affected the outcome of the case [citations], or where the error alleged is so substantial as to reflect on the fairness or impartiality of the trial regardless of how closely balanced the evidence is [citations].” People v. Sanders (1983), 99 Ill. 2d 262, 273, 457 N.E.2d 1241.

To apply the plain-error exception to the waiver rule, courts should first determine if the record plainly shows that an error affecting substantial rights was committed. (People v. Precup (1978), 73 Ill. 2d 7, 17, 382 N.E.2d 227.) This criterion is met in criminal cases when “the evidence is closely balanced or the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial or sentencing hearing. [Citations.]” Young, 128 Ill. 2d at 47.

Thus, a reviewing court must first examine the record to find the strengths and weaknesses of evidence against the defendant, because “if the evidence is close, there is a possibility that an innocent person may have been convicted due to some error which is obvious from the record, but not properly preserved.” (People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.) For example, if a defendant is clearly identified as the robber by three witnesses and treated for gunshot wounds received during the robbery, the evidence is not close enough for an appellate court to review an alleged error already waived by the defendant. People v. Howell (1975), 60 Ill. 2d 117, 121, 324 N.E.2d 403.

Second, the court must look for “those errors of such magnitude that the commission thereof” precludes a fair trial. (Carlson, 79 Ill. 2d at 576-77.) Such errors occur, for example, when the jury instructions fail to distinguish between intent to kill and other intents which a defendant might have had (People v. Roberts (1979), 75 Ill. 2d 1, 14-15, 387 N.E.2d 331), when instructions fail to distinguish between elements for an insanity acquittal and a mental-illness conviction (People v. Fields (1988), 170 Ill. App. 3d 1, 9-10, 523 N.E.2d 1196), or when credibility is an issue and the defendant’s credibility is contrasted with the credibility and reputation of the State’s Attorney’s office (People v. Sexton (1987), 162 Ill. App. 3d 607, 615, 515 N.E.2d 1359).

We choose to consider the issue of the invalidity of the search warrant and, hence, the admissibility of defendant’s confession under the plain error rule for the following reasons. The State’s case in chief, while including occurrence witnesses, did not include any identification of defendant as having committed the crimes defendant was charged with. Thus, it is clear that absent the introduction of the confession, the case would not merely have been close, but defendant would have been entitled to a directed verdict.

In Maryland v. Garrison (1987), 480 U.S. 79, 94 L. Ed. 2d 72, 107 S. Ct. 1013, police officers obtained and executed a search warrant to search an individual and a third-floor apartment at the premises. When executing the warrant, the police officers believed that there was only one apartment on the third floor, but in fact there were two apartments on the third floor. Before the officers found out that they were not in the named individual’s apartment, they observed the contraband which led to defendant’s conviction. The Court observed:

“If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to [the named individual’s] apartment. Moreover, as the officers recognized, they were required to discontinue the search of respondent’s apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant. The officers’ conduct and the limits of the search were based on the information available as the search proceeded.” Garrison, 480 U.S. at 86-87, 94 L. Ed. 2d at 82, 107 S. Ct. at 1017-18.

It is clear from the Garrison case that police personnel, who are aware (as in this case) that two apartment units exist which fit the same description, must refrain from executing the warrant if the knowledge of the defect is apparent prior to execution or must cease executing the warrant when becoming armed with knowledge of the warrant’s defect during execution. The State argues that the record does not reflect when the police discovered the existence of the second unit — before, after, or during execution of the warrant. We think, however, that the testimony that the police noticed the two first-floor apartments when they went to the building is sufficient, in the absence of any contrary indication, to establish that the police discovered the existence of both units, and thus the infirmity of the search warrant, prior to execution of the warrant.

The State next argues that defendant has no standing to question the validity of the search. The State argues that defendant did not live at the apartment where she was arrested, nor was defendant an overnight guest. Thus, defendant did not have an expectation of privacy in the apartment that society is prepared to recognize as reasonable.

Defendant relies on the case of Minnesota v. Olson (1990), 495 U.S. 91, 109 L. Ed. 2d 85, 110 S. Ct. 1684, in arguing that she has standing to contest the validity of the search. There, the Supreme Court addressed the question of the standing of an overnight guest in another’s home to challenge the legality of his arrest in the other’s home. The Court chose not to examine the factors suggested by the State to determine whether a dwelling is a home, and held that a reasonable expectation of privacy indeed existed. The Court stated that it needed to go no further than concluding that defendant’s “status as an overnight guest is alone enough” to show the reasonable expectation of privacy.

A review of the record, however, reveals an insufficient basis from which to conclude that defendant’s status fits within the parameters of Olson. At the motion to quash and suppress, defendant emphatically denied being in the first-floor apartment at the time of arrest. Rather, defendant testified that she was arrested (when awoken from sleep) in the separate and distinct second-floor unit, which was owned (leased) by her friend’s father. Defendant’s sister corroborated defendant’s testimony, testifying that she observed defendant being escorted from the second-floor unit to the first-floor unit by a police officer. The trial court rejected defendant’s factual contention that she was arrested in the second-floor apartment, choosing to believe the police officer’s testimony that defendant was arrested in the kitchen of the first-floor. This factual resolution is apparent from the trial court’s comments in ruling on the motion to suppress. The trial court stated: “The credibility of [defendant’s sister and defendant] is very poor”; “The officers had a search warrant. Their testimony was clear and convincing to me. I don’t believe the testimony of the defense witnesses”; “The defendant at the time of the arrest attempted to obstruct the service of the search warrant; told everybody to run. The officers observed her through the door. When she was told to halt she didn’t stop. She continued to run.” It is implicit, moreover, from the trial court’s holding that there was probable cause to arrest defendant on the obstruction of process charge, that the trial court did not accept defendant’s version of the events at the time of the arrest; otherwise, there would not be probable cause to arrest defendant on the charge.

More important to the resolution of the standing issue, however, is the fact that defendant clearly and unambiguously testified that she did not go to the first-floor unit to sleep that night. She went straight to the separate and distinct second-floor unit, which is where she slept and, according to defendant, where she was arrested.

Thus, we are left with a situation where defendant claims standing with respect to an apartment where she was arrested rather than the apartment where she was sleeping as a guest. Defendant, in addressing the standing issue, correctly observes that we must assume, in light of the trial court’s findings, that defendant was a guest at the first-floor apartment at the time of arrest. Given the defendant’s testimony, however, it is clear that the guest status at the time of arrest is the only fact upon which defendant has to argue standing. We hold that this, alone, is not enough. There is no evidence of record to establish the nature of defendant’s stay in the first-floor apartment. There is no evidence to suggest that defendant had been there for more than a brief amount of time (any longer, in fact, than the seconds it took to begin execution of the warrant) or to suggest that defendant planned to stay for more than a very brief period of time. While defendant testified that it was her friend Katy Woods’ apartment, given defendant’s testimony there is no evidence to establish that defendant was even a “guest” at the time, in the sense of having been invited to the apartment by Woods (although this is arguably inferable). In sum, we are convinced that mere presence in the home of a friend at the time of arrest, alone, is insufficient to confer standing. In Olson, the police made a warrantless, nonconsensual entry into the house where defendant was an overnight guest. Though not explicitly referred to in the Olson opinion, reference to the Minnesota Supreme Court opinion reveals that defendant had permission to stay indefinitely and to admit and exclude guests. The court held that defendant had standing to challenge the search of the host’s house, based simply on defendant’s status as an overnight guest, as this status was one establishing a reasonable expectation of privacy. In People v. Olson (1990), 198 Ill. App. 3d 675, 556 N.E.2d 273, the court held that unregistered overnight guests of the occupant of a hotel room were held to have standing to challenge the search of that room. In reaching its conclusion, the Illinois Appellate Court relied on Minnesota v. Olson and on an Illinois Supreme Court decision which held that the fourth amendment applies equally to private residences and hotel rooms. (See People v. Eichelberger (1982), 91 Ill. 2d 359, 438 N.E.2d 140.) In the Illinois Olson case, the defendant was arrested in bed, sleeping or apparently sleeping, at about 3 or 4 in the morning. The court found this sufficient to establish defendant as an overnight guest at the hotel. Here, there is no indication from the record that defendant was anything more than transitorily on the premises, and thus, defendant has no standing to object to a search of the first-floor premises.

The next issue we address is whether the prosecutor’s explanations for the exercise of peremptory challenges against black jurors were legitimate. In Batson v. Kentucky (1986), 476 U.S. 79, 82, 90 L. Ed. 2d 69, 77, 106 S. Ct. 1712, 1714, the Supreme Court examined “the evidentiary burden placed on a criminal defendant who claims that he has been denied equal protection through the State’s use of peremptory challenges to exclude members of his race from the petit jury.”

First, the defendant must make out a prima facie case by showing that “the totality of the relevant facts gives rise to an inference of discriminatory purpose.” (Batson, 476 U.S. at 94, 90 L. Ed. 2d at 86, 106 S. Ct. at 1721, citing Washington v. Davis (1976), 426 U.S. 229, 239-42, 48 L. Ed. 2d 597, 607-09, 96 S. Ct. 2040, 2047-49.) To establish his prima facie case, the defendant: (1) must show that he is a member of a cognizable racial group; (2) must demonstrate that the prosecutor exercised his peremptory challenges to remove members of the group; (3) may rely on the fact that peremptory challenges constitute a jury selection practice which permits discrimination by those “who are of a mind to discriminate”; and (4) must show “that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” Batson, 476 U.S. at 96, 90 L. Ed. 2d at 87-88, 106 S. Ct. at 1723; see also People v. Mahaffey (1989), 128 Ill. 2d 388, 412-13, 539 N.E.2d 1172.

The relevant circumstances for a prima facie showing include but are not limited to: a disproportionate use of peremptory challenges against blacks; the absence of any common traits among the excluded blacks except their race; and the race of the defendant, the victim, and the witnesses. (Mahaffey, 128 Ill. 2d at 413.) Mere numbers do not establish the prima facie case. Nor does the fact that a trial court invited the State to give reasons for the questioned challenges. Mahaffey, 128 Ill. 2d at 414.

If a court has determined that the defendant failed to meet his prima facie burden, this finding will not be overturned unless it is against the manifest weight of the evidence. Mahaffey, 128 Ill. 2d at 413, citing People v. Evans (1988), 125 Ill. 2d 50, 71, 530 N.E.2d 1360.

Once the defendant has met his prima facie burden, the burden shifts and the State must demonstrate that “ ‘permissible racially neutral selection criteria and procedures have produced the monochromatic result.’ ” (Batson, 476 U.S. at 94, 90 L. Ed. 2d at 86, 106 S. Ct. at 1721, quoting Alexander v. Louisiana (1972), 405 U.S. 625, 632, 31 L. Ed. 2d 536, 542, 92 S. Ct. 1221, 1226.) The prosecutor must show more than an intuitive judgment that black jurors will favor black defendants. Even so, his explanations “need not rise to the level justifying exercise of a challenge for cause.” (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Instead, the prosecutor need only “articulate a neutral explanation related to the particular case to be tried.” Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88, 106 S. Ct. at 1724.

The jury traits which may justify 3s peremptory challenge include but are not limited to: courtroom demeanor, employment status and type of job, connections with those who do criminal defense work, social relationships with judges and lawyers, age, status as renter or homeowner, and arrest record. (People v. Mack (1989), 128 Ill. 2d 231, 240-43, 538 N.E.2d 1107.) The State’s use of these traits to exclude blacks is not race-neutral if the State retains white veniremen having that same trait and there is no additional trait to distinguish the white veniremen who were retained from the black veniremen who were challenged. On the other hand, prosecutors usually challenge jurors because of a combination of traits, so that a trait that might justify exclusion of one juror might be acceptable in another who has a different combination of traits. Mack, 128 Ill. 2d at 239.

If a trial court has determined that the State met its burden in a Batson challenge, the appropriate standard for reviewing the trial court’s ruling is whether the court’s decision is against the manifest weight of the evidence. (Mack, 128 Ill. 2d at 238.) The Mack court noted that because “ ‘the trial judge’s findings in the context under consideration here largely will turn on evaluation of credibility, a reviewing court ordinarily should give those findings great deference.’ ” Mack, 128 Ill. 2d at 238, quoting Batson, 476 U.S. at 98 n. 21, 90 L. Ed. 2d at 89 n. 21, 106 S. Ct. at 1724 n. 21.

The State contends that defendant never made a prima facie case in the first instance, and thus defendant may not challenge the sufficiency of the reasons which were proffered to explain the peremptories. In fact, the State did not argue below that a prima facie case had not been made out, and the quick answer would appear to be that the State has waived the contention. When defendant objected to the State’s exercise of four peremptory challenges against black female prospective jurors, the court requested the prosecutors supply the reasons for the challenges and the prosecutors immediately supplied reasons. It would thus appear that a prima facie case was found by the trial judge, and as the State has not pointed to any indication that the trial judge relied only on the number of black jurors excluded, we do not accept the State’s contentions.

Likewise, defendant’s contention that the trial judge erred in failing to make a specific finding on the legitimacy of the State’s reasons should be rejected. An argument could be made that by allowing the trial to commence to conclusion, the trial judge implicitly did find the prosecutors’ reasons legitimate. More importantly, defendant never objected to the trial court’s rather informal Batson hearing below, and again, defendant’s motion for a new trial never mentioned the lack of specific finding by the trial court. Thus, defendant has waived this argument.

We remain confronted with the issue of the sufficiency of the proffered reasons. It is important to note that defendant does not take issue with the reasons proffered for two of the venirepersons, namely, that each had relatives convicted of felonies. Rather, the defendant challenges the sufficiency of the stated reasons for peremptorily challenging three prospective jurors. The reasons for exclusion of two of these prospective jurors were the same: the two individuals were some 25 minutes late returning to the court (after lunch) for jury selection. Defendant contends that this is an insufficiently race-neutral reason for exercising a peremptory challenge. To the contrary, the fact that venirepersons are tardy in returning from lunch, after being ordered to return at a specific time, indeed may shed some doubt as to their ability to listen to and follow directions during the trial. While it may be an “innocent mistake,” as defendant contends, we hold that it is one that may race-neutrally and legitimately be interposed as a reason for peremptorily challenging a prospective juror.

The reason as to the fifth juror is a bit more problematic. As to the fifth challenged venireperson, the State stated, “We did not like some of the responses that [she] gave, and some of the looks she was giving the Court and ourselves as opposed to [an accepted juror]. *** Demeanor of that particular juror throughout the proceedings and her attitude toward us.” There is no question that the demeanor of a prospective juror may provide a legitimate, race-neutral reason for exclusion of the juror. (See People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453; People v. Mack (1989), 128 Ill. 2d 231, 538 N.E.2d 1107; Note, Illinois Courts Struggle to Evaluate Race-Neutral Explanations for Peremptory Challenges under Batson v. Kentucky (1988), 22 J. Marshall L. Rev. 235, 241-42.) However, in Young and Mack, as well as a recent Illinois Supreme Court case, People v. Morgan (1991), 142 Ill. 2d 410, more than a bare assertion of demeanor was articulated. The reasons why the prospective juror’s demeanor was unacceptable were articulated (e.g., hesitation in response to a question, a casual manner, or answering a question in such a manner as to indicate that the juror had previously reached a “not guilty” verdict). Here, there is no real indication from the State as to what it was about the demeanor of the prospective juror or her answers to the questions that was objectionable. While a more specific answer might be preferable, the appellate court in People v. Talley (1987), 152 Ill. App. 3d 971, 987, 504 N.E.2d 1318, held that the following reason was race-neutral and sufficiently specific: The prosecutor “was not too happy with [the juror’s] demeanor and how he answered the questions.” Thus, under the authority of Talley, the proffered reason in the instant case as to the fifth prospective juror is sufficient. A different scenario is presented from the instant case where the State repeatedly asserts “demeanor” as a basis for the exclusion of venirepersons without any further explanation, and the defendant has otherwise shed doubt upon the legitimacy of the proffered reasons (e.g., shown disparate treatment of accepted and excluded jurors). Here, four of the five reasons for exclusion were clearly legitimate. Defendant has not presented any argument whatsoever that white jurors who were accepted shared the characteristics cited by the State for exclusion, which is an important consideration. (See People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351.) The trial judge, whose findings are entitled to great deference, apparently was satisfied with the response from the State, as he did not sustain defendant’s objection. Thus, the instant case is a far cry from a case where the record reveals racially discriminatory tactics by the State during voir dire.

The next issues we address are whether defendant was denied a fair trial due to evidence and argument relating to (a) the police having read reports of armed robberies that led them to focus on defendant, and the police intensifying their search for defendant after speaking with a tavern robber; (b) the State allowing the presence in the court room of the cart with the name of a well-known gang on it, and a folder which contained the title “Gangs Prosecutions,” as well as other implications that codefendants were gang members; and (c) the admission of the mugshots of the codefendants into the jury room.

Defendant contends that she was denied a fair trial due both to the testimony of police officers that after reading reports of other tavern robberies they came up with the last name of “Bass” and after talking to one Willie Anderson, who was in custody for an armed tavern robbery, they “intensified” their search for defendant. With respect to the admissibility of the testimony concerning the police reports, defendant raises two contentions in arguing that the testimony should not have been admissible, namely: (1) that the testimony was inadmissible hearsay; and (2) that the testimony was irrelevant and prejudicial evidence indicative of other criminal activity on the part of the defendant.

In support of her hearsay contention, defendant relies heavily upon the case of People v. Parrott (1976), 40 Ill. App. 3d 328, 352 N.E.2d 299. In Parrot, however, the evidence was introduced for the truth of the matter asserted, and thus was held to be inadmissible hearsay. We do not perceive a hearsay violation in the instant case. The testimony here was not admitted for the truth of the matter asserted, but only to show why police personnel acted as they did. At different points during much of the testimony defendant complains of, the jury was instructed to consider the testimony only for the limited purpose of showing police personnel conduct, and at the end of the trial, the jury was reminded to follow all limiting instructions. The testimony elicited took two forms, namely: that police personnel, after reviewing a series of police reports involving tavern armed robberies, came up with a person by the last name of defendant’s relating to the investigation; and that Detective Bogucki, after speaking with a person named Willie Anderson, “intensified” the search for a subject named Patricia Bass and codefendants.

Defendant argues that the “substance” of the police reports and conversation — that defendant had committed other robberies — was revealed. While that is one damaging inference that can be drawn from the testimony, it is not the only inference that can be drawn. Another inference, for example, can be that defendant was associated with the codefendants (which defendant admitted in her properly admitted confession) and/or that defendant was in the vicinity of the other robberies and might have information about the other crimes. In any event, regardless of the inferences defendant speculates the jury may have drawn from the testimony, the important point is that the testimony was admitted not for the truth of the matter defendant would infer, but rather for the purpose of explaining the actions of police personnel, and thus defendant’s objections to the testimony on hearsay grounds is without merit.

Having decided that a hearsay violation did not occur, we next address the issue of whether the complained-of testimony was inadmissible as irrelevant and prejudicial evidence indicative of other criminal activity on the part of defendant. People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528, upon which defendant relies, is distinguishable. There, the complained-of testimony related to the presence of a gun (not the gun used to perpetrate the crime defendant was tried for) on defendant’s person at the time of arrest, and the fact that a witness’ statement had been taken while police personnel were investigating defendant’s involvement with other homicides. Here, the testimony was limited to steps the police took in connection with the investigation of the instant case and was admitted only for the purpose of showing the investigation. The question thus becomes whether the testimony as to the police reviewing reports of tavern robberies was relevant to a material issue in this case. A review of the record reveals that during the pretrial discussion of defendant’s motion in limine to exclude certain of the complained-of evidence, defendant argued that she was arrested on another charge, on a “roust” according to defense counsel. Such appeared to be defendant’s theory of the case during the pretrial proceedings on the motion to quash arrest. However, this theory was never once argued to the jury. Defense counsel did not argue or intimate such a theory in counsel’s opening statement.

To the extent that the reference to police reports is indicative of other criminal activity, it is axiomatic that such evidence is admissible if going to any relevant, material issue, but not to establish that defendant committed the crime defendant is charged with. (See People v. Hayes (1990), 139 Ill. 2d 89, 564 N.E.2d 803.) The State argues that in this case “it was particularly necessary for [t]he People to explain the detectives’ investigatory procedure” because the State “had to provide some explanation for the fact that the detectives went to speak to defendant after she’d been arrested on other charges.” In point of fact, the only testimony as to the arrest of defendant was that she was arrested during the execution of a search warrant and that she was not the subject of the search warrant. The State cites no part of the record to support this contention and the record reveals no support for the State’s contention.

The State relies heavily on the cases of People v. Byrd (1976), 43 Ill. App. 3d 735, 357 N.E.2d 174, and People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355. In Byrd, the court observed: “Informing the triers of fact of consequential steps in the investigation of a crime is a normal procedure and is important to the full presentation of the State’s case.” (Byrd, 43 Ill. App. 3d at 742.) Byrd did not, however, involve testimony which could raise the inference that the defendant had participated in other crimes, similar to the crime defendant was charged with. In Johnson, the complained-of testimony was relevant to rebut the suggestion of defense counsel that law enforcement personnel had unjustifiably targeted the defendant.

A review of the record leads to the conclusion that it was error to allow the police officers to testify as to the reports of other tavern robberies. While we do not hold that such evidence can never be properly introduced absent a claim such as the defendant’s in Johnson, we have, as indicated, found no support for the State’s argument as to their relevance to a material issue in this case. Moreover, we perceive no other material issue whose resolution benefitted from the admission of the above testimony. Absent a material issue, the testimony should not have been brought to the attention of the trier of fact, given its potential prejudicial effect.

The issue, then, becomes whether the error is reversible error or harmless error. Errors will be held harmless where they could not reasonably have affected the result or contributed to the defendant’s conviction. (People v. Carlson (1982), 92 Ill. 2d 440, 442 N.E.2d 504.) A primary factor in any harmless error analysis is whether the proof of defendant’s guilt was overwhelming. (People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.) Here, the proof of guilt was overwhelming. Defendant confessed in detail to the robbery. Defendant’s claim that she confessed to participation in a tavern armed robbery and murder due to fear of her children being taken away is somewhat illogical: could defendant reasonably believe that she could confess to armed robbery and murder and not be separated from her children? While testifying, defendant claimed that she did not participate in the robbery but was only told about the robbery by codefendants. Yet, although defendant confessed in great detail about the incident and in a manner that closely resembled the bartender’s description of the incident, defendant repeatedly testified that she was not told of many of the details she confessed to by the codefendants. At the police station, defendant herself identified one of the tavern patrons. Thus, the evidence of defendant’s guilt was overwhelming. Further, defendant herself admitted when she testified that she had participated in a prior “stick up” of a tavern with a codefendant.

Defendant notes that the State referred to Anderson as a tavern robber himself. While we agree that the references to Anderson as a tavern robber were error, these references by the State took place only in the State’s opening statement and closing argument. The State did not bring this out during its case in chief. Rather, defense counsel brought out that Anderson was in custody on a charge of armed robbery. On redirect examination, the State asked Detective Shalk if Anderson gave him additional information regarding this particular armed robbery, and defense counsel’s objection to this question was sustained. Objections to the reference to Anderson as a tavern robber were sustained during argument, and the jury was later instructed to consider only the evidence presented and not to consider counsel’s comments as evidence. Any error was thus cured and in any event was not reversible.

Defendant also alleges as error the fact that the State in its case in chief referred repeatedly to contacting the “gang crimes” division in the course of its investigation of the case, specifically with regards to a codefendant. Defendant does not contend that the State could not properly refer to the fact that in the course of their investigation police personnel spoke to other police officers in a different crime unit. Rather, defendant appears to complain that the State overly emphasized that the gang crimes unit was contacted. The record reveals that objections to questions involving the investigation were sustained, but for the apparent reason that the questions (which related to why police investigated a codefendant and what police personnel instructed the other police unit) went beyond the admitted purpose of showing investigatory procedures. The objections were sustained, the questions unanswered, and we feel that any error which occurred was sufficiently cured and not reversible error.

The next evidentiary issue we address is whether reversible error occurred due to the presence of the cart and the folder in the courtroom. Defendant objected to both of these items in the course of the trial. The cart displayed the name of the well-known street gang the “Black Gangster Disciples” in red letters. The file folder was titled “Gangs prosecutions.” To be sure, as the State points out, there is only defense counsel’s assertion that these items were visible to the members of the jury. However, the State does not deny the existence of these items in the courtroom, and the State conceded below (and makes no contrary argument before us) that the prosecution of defendant had nothing to do with gangs.

These items had no business being in the courtroom where they were even potentially within viewing range of the jurors. The existence of the items leads to the appearance that they were either intentionally or negligently (or both) brought into the courtroom with the effect that, if seen by the trier of fact, prejudice to the defendant in the eyes of the trier of fact could result. The existence of these items can only be considered error. For the reasons that the testimony regarding the police reports was harmless error, however, we do not deem the error reversible. Further, there is no showing in the record that jurors actually saw the items, or if they did, that defendant was prejudiced thereby. We therefore hold that the presence of the cart and the folder was harmless, and not reversible error.

As to the last evidentiary issue defendant raises, the allowance of the mugshots of codefendants to go back to the jury room, defendant does not contend that they were improper evidence, only that they should not have gone to the jury. Initially, the trial court wondered what the purpose of showing the jury a photograph of a “rough looking” person would serve. Subsequently, the mugshots were allowed to go back to the jury on the theory that they were part of defendant’s confession. (Defendant had identified her codefendants’ photographs when she confessed.)

While the necessity of the photographs going to the jury might be questioned, as the identification of the codefendants was not an issue at defendant’s trial and defendant’s relationship with the individuals was clearly established, any error, however, appears to have been minimal. While the same concerns relating to mugshots of defendants would apply to mugshots of witnesses and codefendants (the concern that the mugshot is indicative of other criminal activity on the part of the photographee, see People v. Hawkins (1972), 4 Ill. App. 3d 471, 281 N.E.2d 72), defendant has not argued nor does the record reveal that the mugshots contained any information, such as arrest dates or police department name, that would suggest criminal activity. Thus, we do not consider the introduction of the mugshots to be reversible error.

We next consider whether defendant was denied a fair trial by State argument and testimony on the theme that the victim’s American dream was destroyed by the murder. Defendant contends that the State improperly influenced the jury’s sympathies by presenting testimony relating to and referring in argument to the relationship and history of the victim and his wife. Specifically, some minimal information was elicited as to the circumstances of the victim meeting his wife and their consequent decision to marry and open the tavern. Likewise, some testimony was elicited that it was the victim’s dream to own a tavern, and the State in opening statement and closing argument referred to the victim’s dream of owning a tavern and the “American dream.”

We are aware, as defendant observes, that counsel may not say or do anything in the course of a trial which has the only effect to inflame the passion or arouse the sympathy of the jury. (See People v. Hope (1986), 116 Ill. 2d 265, 508 N.E.2d 202.) However, we have reviewed the record and conclude that the argument and testimony defendant complains of were sufficiently brief and curtailed so as not to constitute a passionate appeal to the jurors’ sympathies, and was a fair comment on the unfortunate circumstances and effect of the incident.

Finally, defendant argues that her sentence was excessive and should be reduced. We disagree and hold that defendant’s sentence was not excessive. While defendant argues that defendant was young, grew up in a difficult family situation and had “limited intellectual resources,” the trial judge is entitled to considerable deference. Here, the trial court specifically observed that the defendant lacked remorse, which is a factor which may be considered by the trial court. (People v. Bigsby (1977), 52 Ill. App. 3d 277, 283, 367 N.E.2d 358.) Given the circumstances of the case, and the trial court’s observation as to defendant’s lack of remorse, reduction of defendant’s murder sentence from 30 to 20 years is not warranted, and we hold that the trial court did not abuse its discretion in sentencing defendant to a 30-year term of imprisonment.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA, J., concurs.

JUSTICE EGAN,

specially concurring:

It is my impression that one of the most often-recurring assignments of error before courts of review in this State involves the prosecution’s claim that certain evidence is admissible to explain the narrative of events leading up to a defendant’s arrest. That claim is made here to refute the defendant’s argument that the testimony of Officer Bogucki violated the general rule against proof of other crimes. The majority recognize that the evidence was improper here, and I agree.

Some appellate court opinions have recognized an exception to the general rule barring proof of other crimes when the evidence is offered to provide a narrative of events leading up to the defendant’s arrest. (See, e.g., People v. Hunley (1989), 189 Ill. App. 3d 24, 545 N.E.2d 188; People v. Goka (1983), 119 Ill. App. 3d 1024, 458 N.E.2d 26; but see contra People v. Spiezio (1982), 105 Ill. App. 3d 769, 434 N.E.2d 837.) I concur specially to emphasize that any such appellate court authority is contrary to the pronouncements of our supreme court.

To my knowledge, no preeminent authority on evidence (e.g., Wig-more, McCormick, Wharton, Cleary or Graham) has ever recognized such an exception. That exception is not specified in Corpus Juris Secundum (see 23 C.J.S. Criminal Law §§825 through 832 (1989)) nor in American Jurisprudence (see 29 Am. Jur. 2d Evidence §§320 through 333 (1967)). Most important, however, our supreme court has expressly refused to recognize such an exception to the general rule denying admissibility of other offenses.

In People v. Bartall (1983), 98 Ill. 2d 294, 456 N.E.2d 59, the supreme court held that the evidence of a subsequent crime was admissible to establish intent. The court referred to People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821, as approval of the admission of evidence of a subsequent robbery in a trial for murder and armed robbery in order to show “the defendant’s intent and the context of his arrest.” (Bartall, 98 Ill. 2d at 310.) However, in People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612, the supreme court held inadmissible evidence of an armed robbery two years after the crime for which the defendant was on trial. The State argued that the evidence was admissible to show the circumstances leading up to the defendant’s arrest, citing McKibbins. To that argument the supreme court spoke as follows:

“Although the People assert numerous grounds for admitting evidence of the May 4, 1982, armed robbery, we find no justifiable basis for its admission. Contrary to the People’s assertion, the evidence was not admissible merely to show how the investí gation unfolded and how defendant came into custody. These purported bases for admission beg the critical question of relevance to prove defendant’s commission of the crimes in issue and are not supported by our prior decisions. For example, in People v. McKibbins (1983), 96 Ill. 2d 176, cited by the People, this court affirmed the admission of evidence detailing the events of the defendant’s arrest when discovered in the act of robbing a jewelry store, but only where the evidence was also relevant to specifically connect the defendant with the crimes for which he was being tried, a robbery and murder which had occurred two days earlier. (96 Ill. 2d at 184.) The circumstances of the jewelry store robbery tended to establish that the defendant had participated in the earlier murder with the necessary criminal intent. (96 Ill. 2d at 186.)” (Emphasis added.) 123 Ill. 2d at 342.

The court held that the error was harmless and affirmed the judgment. Justice Clark dissented from the affirmance; he did not agree that the error was harmless and added this observation:

“The majority concedes that there was ‘no justifiable basis’ for the State’s introduction of evidence of the May 4, 1982, armed robbery. (123 Ill. 2d at 342.) Indeed, the evidence did not tend to prove identity, knowledge, motive, opportunity, or any other fact in issue. Nor was the evidence of the May 1982 offense admissible to show how the defendant was apprehended, as the State otherwise argues. Our decisions have never recognized such an exception to the general rule requiring that other-crimes evidence be excluded.” (Emphasis added.) 123 Ill. 2d at 367 (Clark, J., dissenting).

As noted by the majority, the defendant may open the door for the admission of evidence of another crime (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355); and evidence of another crime may be admitted when showing resistance to an arrest. People v. Sustak (1958), 15 Ill. 2d 115, 153 N.E.2d 849.

I agree with the majority that the verdict would have been no different if the improper evidence had been excluded. The defendant’s confession was entirely consistent with and corroborated the testimony of the occurrence witnesses. In this regard, this case is distinguishable from the cases cited by the defendant, People v. Mullen (1990), 141 Ill. 2d 394, 566 N.E.2d 222, and People v. Johnson (1990), 202 Ill. App. 3d 417, 559 N.E.2d 1041. In addition, the State’s case in both Mullen and Johnson contained other infirmities not present here.

Officer Bogucki’s testimony that after speaking to Willie Anderson he began to look for Patricia Bass did not violate the hearsay rule. He did not testify to the contents of his conversation with Anderson. (See People v. Gacho (1988), 122 Ill. 2d 221, 522 N.E.2d 1146.) However, I express no view on the question of whether the hearsay rule was violated by Bogucki’s testimony that he examined police reports of other robberies and the defendant’s name surfaced.


source: Caselaw Access Project

author: PRESIDING JUSTICE RAKOWSKI JUSTICE LaPORTA,

license: Public Domain

text:
    WILLIAM J. HARTE, Plaintiff-Appellant, v. CHICAGO COUNCIL OF LAWYERS et al., Defendants-Appellees.
    First District (6th Division)
    No. 1—90—2742
    Opinion filed October 4, 1991.

      LaPORTA, J., dissenting.
    William J. Harte, Ltd., of Chicago, for appellant.
    Schiff, Hardin & Waite, of Chicago (Frederick J. Sperling and Aphrodite Kokolis, of counsel), for appellees.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court;

Plaintiff-appellant William J. Harte appeals from the dismissal of his complaint alleging defamation per se and false-light invasion of privacy against defendants-appellees Chicago Council of Lawyers and Jeffrey B. Gilbert (Chicago Council and Gilbert, respectively). The trial court dismissed plaintiff’s initial complaint, giving plaintiff leave to replead a defamation per quod action. Subsequently, plaintiff filed a motion to reconsider, or alternatively, sought leave to file a proposed amended complaint which again attempted to state the causes of action of defamation per se and invasion of privacy. Plaintiff appeals the trial court’s denial of this motion and the denial of leave to file the amended complaint. We affirm.

Plaintiff’s proposed amended complaint alleged the following. Plaintiff is an attorney practicing law principally in Chicago, Illinois. Defendants Chicago Council and Gilbert were an Illinois bar association and its president, respectively, at the time of the pertinent publications which give rise to this suit. On February 6, 1990, defendants published a report which related to judicial candidates for the upcoming Illinois Supreme Court election.

Plaintiff alleged that in the report, which was attached to the amended complaint, defendants falsely stated:

“Moreover, with regard to disciplining attorneys implicated in Operation Greylord, the Supreme Court has treated less prominent attorneys far more harshly than prominent ones with similar ethical lapses. This leads to the appearance that who you are or who you know may be more important to the result in the Supreme Court than the merits of the case itself.”

The amended complaint further alleged that contemporaneously with the publication of the written report, defendants, through defendant Gilbert, were interviewed by members of the press. Gilbert told a reporter from the Chicago Sun-Times that “[o]ne example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Judge Richard LeFevour.” An article attributing that statement to Gilbert was published in the Sun-Times on February 9, 1990. (This article, too, was attached to the proposed amended complaint.) Plaintiff alleged on information and belief that defendant Gilbert specifically identified plaintiff as one of the persons implicated in Greylord cases to the author of the article.

Operation Greylord was a highly publicized Federal investigation and series of criminal charges relating to instances of corruption by members of the Illinois bar and bench. As a result of the publicity attendant to Operation Greylord, numerous groups, including defendants, have discussed ways to improve the Illinois court system. Defendants have used Operation Greylord as a forum to advocate their views on reform of the Illinois judicial system. In connection with the then-upcoming election and in an effort to advocate their views on judicial reform, defendants published their report.

Chicago Council was given leave by the Illinois Supreme Court to appear as amicus curiae in a number of attorney discipline cases prosecuted by the Administrator of the Attorney Registration and Disciplinary Commission (ARDC). Among the cases which the ARDC prosecuted was In re Corboy (1988), 124 Ill. 2d 29, 528 N.E.2d 694. Among the attorneys whose cases were decided in this case was plaintiff. Plaintiff alleged that as amicus curiae in his case, Chicago Council and Gilbert knew of the charges brought against plaintiff, knew of plaintiff’s testimony, and that defendants knew that plaintiff was not “implicated” in Operation Greylord. Defendants also knew, plaintiff alleged, that plaintiff had never been the target of a Federal investigation into criminal wrongdoing and that plaintiff had not been identified in any Greylord case as having engaged in wrongdoing or criminal activity. Defendants knew that plaintiff served as attorney to James LeFevour, originally a target of investigation and a key government witness, and that plaintiff’s involvement in Operation Greylord was limited to his capacity as an attorney. Plaintiff further alleged that he contacted the then-United States Attorney and an assistant United States Attorney, and inquired whether he had been implicated in the investigation. Plaintiff was assured that he was not and that his name had not surfaced in connection with suggestion of wrongdoing.

Cook County Circuit Court Judge Richard LeFevour was indicted as a result of Operation Greylord. During Judge LeFevour’s trial, evidence was introduced which established that LeFevour received a check, signed by plaintiff, in the amount of $1,000. In the amended complaint, plaintiff related the circumstances in which the check was given to LeFevour. The disciplinary proceeding brought against plaintiff established that plaintiff was informed in a brief conversation with Walter Ketchum that LeFevour’s mother was hospitalized and sought release from the hospital during the holiday season. She was concerned that because of her inability to satisfy her health care obligations, she might not be readmitted to the hospital after the holidays. Plaintiff was asked to lend $1,000 to Mrs. LeFevour to satisfy her health care obligations until her insurance could provide reimbursement, and plaintiff agreed to do so. Plaintiff’s best friend is Raymond LeFevour, Richard LeFevour’s cousin. Plaintiff has known the LeFevours since the 1950’s.

Because LeFevour’s mother was at the time incompetent, the check was made payable to Richard LeFevour, who was acting as the conservator of his mother’s estate. Plaintiff did not intend in the transaction to convey a thing of value to Richard LeFevour or to interfere with the administration of justice, and defendants knew this. Defendants also knew the facts surrounding the transaction. While Mrs. LeFevour’s hospital expenses were ultimately reimbursed by her insurance carriers, the $1,000 loan was never repaid to plaintiff.

Plaintiff’s amended complaint further elaborated on the disciplinary proceedings before the supreme court. Walter M. Ketchum was also a party to this proceeding. The ARDC’s Administrator recommended a harsher sanction against Ketchum than against plaintiff. Chicago Council, in its capacity as amicus curiae, did not address the differing levels of discipline recommended and acknowledged that “mitigating factors may be present in certain of [the specific] cases.” A copy of Chicago Council’s brief in the disciplinary case was attached to the proposed amended complaint. Plaintiff alleged that defendants thus knew that the different sanctions imposed in his case were not the result of favoritism exhibited by the Illinois Supreme Court and that the attorneys in that case did not engage in conduct which constituted similar ethical lapses.

Defendants moved pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615) to dismiss the original complaint. Defendants asserted several grounds for dismissal, including: substantial truth (which the trial court denied due to the impropriety of the defense being asserted by way of a section 2—615 motion); that the allegedly defamatory words could be innocently construed; and that the complained-of defamation could not be per se defamation given that it was not alleged that defendants specifically named plaintiff. The trial judge granted the motion on both of these latter grounds. The amended complaint, as indicated, alleges that Gilbert referred to plaintiff by name when being interviewed by the Sun-Times reporter.

The pivotal issue before this court is whether plaintiff’s proposed amended complaint states a cause of action for per se defamation. Defamatory statements may be actionable per se or actionable per quod. A publication is actionable per se if it is “so obviously and naturally harmful to the person to whom it refers that a showing of special damages is unnecessary.” (Owen v. Carr (1986), 113 Ill. 2d 273, 277, 497 N.E.2d 1145.) The defamatory character of such a statement is apparent on its face, and extrinsic facts are not necessary to explain. (Schaffer v. Zekman (1990), 196 Ill. App. 3d 727, 731, 554 N.E.2d 988, citing Brown & Williamson Tobacco Corp. v. Jacobson (7th Cir. 1983), 713 F.2d 262, 267.) Statements are actionable per quod if they necessitate extrinsic facts or innuendo to explain their defamatory meaning and require evidence demonstrating, as a matter of fact, that substantial injury resulted to the plaintiff from their use. Schaffer, 196 Ill. App. 3d at 731, citing Heerey v. Berke (1989), 188 Ill. App. 3d 527, 532, 544 N.E.2d 1037.

Words are considered defamatory per se in Illinois if they: (1) impute the commission of a criminal offense; (2) impute infection with a loathsome communicable disease; (3) impute inability to perform or want of integrity in discharge of duties of office or employment; or (4) prejudice a party, or impute lack of ability, in his trade. Mittelman v. Witous (1989), 135 Ill. 2d 220, 238-39, 552 N.E.2d 973.

In Mittelman, the Illinois Supreme Court reaffirmed the use of the “innocent construction” rule in Illinois. The rule, as modified in the case of Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195, provides as follows:

“[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se.” (Chapski, 92 Ill. 2d at 352.)

If a statement is reasonably capable of a nondefamatory interpretation, given its context, it should be so construed, and there is no balancing of reasonable constructions. Mittelman, 135 Ill. 2d at 232.

Accordingly, we must resolve whether the allegedly defamatory statements are capable of being innocently construed. We note that defendants have not asserted that the publications at issue are not capable of a defamatory interpretation in the first instance. A clear understanding of the context of the statements is necessary to resolution of this issue. Plaintiff contends that the statement in defendants’ report that “with regard to disciplining attorneys implicated in Operation Greylord, the [sjupreme court has treated less prominent attorneys far more harshly than prominent ones with similar ethical lapses” is defamatory. The statements in the Sun-Times article plaintiff contends are defamatory, in substance, are that plaintiff and other lawyers were the recipients of “favoritism” from the supreme court in connection with their disciplinary actions.

Defendants’ report was entitled “REPORT OF THE CHICAGO COUNCIL OF LAWYERS ON JUDICIAL CANDIDATES FOR THE ILLINOIS SUPREME COURT FOR VACANCIES FROM COOK COUNTY IN THE PRIMARY ELECTIONS TO BE HELD ON MARCH 20, 1990.” The five-page report with attachments, in its entirety, is devoted to a review and criticism of the Illinois Supreme Court and evaluations of candidates for vacancies in the court in the upcoming election. The article is entitled “State high court accused of favoritism on ethics,” and is concerned with defendants’ criticism of the Illinois Supreme Court’s handling of the aforementioned ethics cases as well as the evaluations defendants gave judicial candidates.

Given the context of the statements relating to plaintiff being a beneficiary of “favoritism,” which must be considered (Mittelman, 135 Ill. 2d 220, 552 N.E.2d 973), it is apparent that the statement can reasonably be innocently (indeed logically) construed as criticizing the Illinois Supreme Court, and not plaintiff. To be the beneficiary of “favoritism,” does not, as plaintiff implies, necessarily suggest wrongdoing on the part of plaintiff in his relations with the court. One may be a favorite for any number of reasons that do not implicate any wrongdoing.

As to the statement in the report, in conjunction with Gilbert’s statement, that plaintiff was “implicated in Operation Greylord,” plaintiff contends that this statement conveys the following: “To say that one has been ‘implicated’ in ‘Operation Greylord’ is to state that that person has been identified in an incriminating way in the federal investigation into judicial corruption in Cook County, Illinois. Defendants’ statement accused plaintiff of having engaged in the type of conduct which formed the basis of the Operation Greylord investigation and gave rise to the indictment and conviction of various attorneys, judges and court personnel.”

As support for this interpretation, plaintiff puts forth a dictionary definition of the word “implicate” which defines the word as “to involve intimately or incriminatingly” (emphasis added). Thus, according to plaintiff’s own definition of the word, defendants’ statement that he was implicated in Operation Greylord can reasonably be innocently interpreted to mean that plaintiff was only intimately involved in Operation Greylord. Another dictionary definition supplies a definition of the word “implicate” as, inter alia, “to involve as a consequence, corollary, or natural inference.” (Webster’s Ninth New Collegiate Dictionary 605 (1989).) This definition suggests a reasonable innocent construction of defendants’ statement amounting to the observation that plaintiff’s disciplinary proceeding before the Illinois Supreme Court was a consequence of Operation Greylord. It is important to note, as the trial court observed and as we have indicated, that the innocent construction rule does not allow for the balancing of reasonable constructions, and we need not decide whether defendants’ interpretation of the statements at issue or plaintiff’s is more reasonable than the other.

In holding as we do, we do not suggest that any seemingly innocent alternative definition from a reputable dictionary necessitates that a court hold that a statement may reasonably be innocently construed. The gist of the innocent construction rule is that the statement is to be construed in the context it is published in, and that words should be given their natural and obvious meanings. While the fact that one of several alternative dictionary definitions provides for an innocent interpretation of a statement is persuasive authority that a statement has a reasonable innocent construction, such an alternative definition is not dispositive of the issue.

Berkos v. National Broadcasting Co. (1987), 161 Ill. App. 3d 476, 515 N.E.2d 668, upon which plaintiff heavily relies, is distinguishable. There, the court held that plaintiff’s complaint complaining of defendants’ broadcast of a news report pertaining to Operation Greylord stated a cause of action for libel per se. In Berkos, the entire focus of the broadcast was on judicial corruption, and the plaintiff-judge was, according to the court, referred to in such a manner as to impute that the plaintiff had engaged in criminal conduct. Here, on the other hand, while the context of the complained-of publications is on judicial shortcomings, the plaintiff is not a judge. Additionally, because the Berkos court did not have the benefit of the Mittelman decision, it may have misapplied the innocent construction rule, as evidenced by the following reasoning. “We cannot say that the insinuation here is so equivocal or ambiguous that an innocent interpretation is equally or more reasonable. As a result the trial court’s orders cannot be affirmed either on the basis that [defendant’s] remarks would not be understood as defamatory by a reasonable viewer of ordinary intelligence, or on the ground that the remarks are more reasonably construed as innocent in their overall context.” (Berkos, 161 Ill. App. 3d at 488.) Such reasoning evinces the balancing process which our supreme court in Mittelman specifically disapproved. (See Mittelman, 135 Ill. 2d at 232 (where the court, in response to the argument by Mittelman that dismissal of the defamation count was appropriate “only where the court finds an innocent construction is ‘equally or more reasonable’ than a defamatory construction,” observed “[tjhere is no balancing of reasonable constructions as Mittelman suggests”).) The Berkos court, however, did make a perceptive observation that in the context of the news report, the question arose as to what newsworthy value the reference to the plaintiff would have served absent the interpretation plaintiff suggested. (Berkos, 161 Ill. App. 3d at 487.) Here, on the other hand, the reference to plaintiff’s disciplinary case and treatment from the supreme court served as an illustration of defendants’ criticisms of the Illinois Supreme Court.

As the statements in this case are capable of reasonably being construed in a manner that does not impute the commission of a crime, impute a want of integrity in the discharge of plaintiff’s duties as an attorney or prejudice plaintiff in his profession, we hold that plaintiff has failed to state a cause of action for defamation per se. Thus, the trial court was correct in dismissing count I of the original and proposed amended complaints.

It follows that as plaintiff has failed to state a cause of action for defamation per se, count II, alleging invasion of privacy (false light), must fail as well. Plaintiff admits as much in his briefs and again at oral argument. See Schaffer, 196 Ill. App. 3d at 734-36.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

MURRAY, J., concurs.

JUSTICE LaPORTA,

dissenting:

I respectfully dissent from the opinion of the majority and would reverse the trial court’s order of dismissal with prejudice of the defamation and false light invasion of privacy claims brought by the plaintiff.

As the majority points out, this appeal comes before us because of the trial court’s dismissal of the complaint for defamation per se on defendant’s section 2 —615 motion and its denial with prejudice of plaintiff’s subsequent motion to reconsider or, in the alternative, for leave to file an amended complaint for defamation per se. The section 2—615 motion challenges the sufficiency of the allegations of the complaint and supporting exhibits to state a cause of action, and matters outside the allegations of the complaint including affirmative defenses such as substantial truth may not be considered. Ill. Rev. Stat. 1989, ch. 110, par. 2—615.

The majority correctly states that the pivotal issue is whether plaintiff has sufficiently alleged a per se defamation cause of action so that special damages need not be pled. It is my opinion that the allegations of the proffered amended complaint do allege a per se defamation cause of action.

Initially the plaintiff filed his complaint against the Chicago Council (Council) and Gilbert in two counts alleging defamation and false light invasion of privacy seeking compensatory and punitive damages without pleading special damages. Defendants moved for dismissal pursuant to section 2—615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615). The motion was based on three grounds: (1) the Council report did not mention Harte by name; (2) the statements in the report and in the Sun-Times news story may reasonably be innocently interpreted; and (3) the statements in the report and the news article are substantially true.

The court entered its order on July 5, 1990, which provided in part: “Count I for per se defamation and Count II for per se false light invasion of privacy are stricken. Leave to replead in defamation per se is denied. *** Plaintiff is given 28 days to file an amended complaint for per quod defamation and false light invasion of privacy on or before August 2, 1990.” The trial judge granted the motions on the bases that the statement can be innocently construed and that Harte was not specifically named in the report. The court did not consider whether the statements were true.

I am of the opinion that plaintiff should have been given leave to replead either per se or per quod defamation at his election and that the restriction to a per quod claim was error.

Following the trial court’s striking of plaintiff’s original complaint on defendant’s motion to dismiss and denial of leave to re-plead in defamation per se while granting leave to replead for per quod defamation and false light invasion of privacy, plaintiff moved for reconsideration or in the alternative for leave to file an amended complaint for defamation per se and false light invasion of privacy. A copy of the amended complaint was attached to the motion. The trial court denied plaintiff’s motion and stated in part: “Because plaintiff has failed to file an amended complaint for either defamation per quod or false light invasion of privacy alleging special damages, this action is dismissed with prejudice.”

In my view the court clearly erred in dismissing plaintiff’s cause of action with prejudice thereby extinguishing his right to respond in a litigation forum to the Council’s published report and its links to the resulting published news story which identified him by name in a story about crime, corruption and public wrongdoing. Both orders are appealed.

The amended complaint proffered by plaintiff which was rejected by the court is in summary as follows: Count I seeks compensatory and punitive damages from the defendants for defamation per se. Its allegations are that plaintiff was admitted to the practice of law in 1959 and that he enjoyed a good name and reputation among acquaintances and in the community prior to and at the time of the defendants’ conduct complained of. He alleges that on or about February 6, 1990, defendant Council “created, promoted and published its report” on supreme court candidates (a copy is attached as an exhibit to the complaint) which “falsely, wrongfully and maliciously” stated:

“Moreover, with regard to disciplining attorneys implicated in Operation Greylord, the Supreme Court has treated less prominent attorneys far more harshly than prominent ones with similar ethical lapses. This leads to the appearance that who you are or who you know may be more important to the result in the Supreme Court than the merits of the case itself.” (Emphasis added.)

Plaintiff then alleges that defendant Gilbert, then president of defendant Council, contemporaneously met with members of the press at which time he advised a news reporter with the Chicago Sun-Times that “one example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Judge Richard LeFevour.” (Emphasis added.) Plaintiff alleges that the Sun-Times news article published on February 9, 1990 (a copy is attached as an exhibit to the complaint), identified plaintiff by name as one of the persons “in Greylord cases.” Plaintiff alleges on information and belief that defendant Gilbert specifically identified plaintiff by name to the reporter as one of the persons implicated in Greylord cases.

Plaintiff alleges that Operation Greylord was a highly publicized criminal investigation of corruption by members of the bar, of the judiciary and nonjudicial court personnel. He acknowledges that he was the subject of an attorney discipline case decided by the supreme court in June 1988, and alleges that the Council appeared, intervened and participated in that proceeding by filing an amicus curiae brief (a copy is attached as an exhibit to the complaint) and knew the nature and origins of the charges against plaintiff and the true facts of the case, knew plaintiff’s sworn and unrebutted testimony relating to those charges, knew that he was not “implicated in Operation Greylord” nor was he the target of any Federal investigation into criminal wrongdoing or illegal activity. He alleges the Council tacitly endorsed differing levels of discipline in those cases and acknowledged there might be mitigating factors in some of the cases. He alleges that the Council knew that the supreme court did not impose different sanctions on the basis of favoritism exhibited by the court for conduct amounting to “similar ethical lapses” by the attorneys and that the Council further knew that plaintiff had not engaged in conduct intended to interfere with the administration of justice. Plaintiff alleged that defendants’ statement in its report and to the press imputed to the plaintiff the commission of a crime and the lack of integrity in his profession and when the statements were made defendants knew them to be false. Plaintiff alleged that the statements were made with malice, with knowledge that they were false and were intended to publish false statements of fact against plaintiff to advance defendants’ political goals. In count II for invasion of privacy plaintiff alleged the defendants’ statements placed him in a false light before the public and he sought compensatory and punitive damages. No special damages were pled.

The defendants contend that the Council report, which did not identify Harte by name, the press release and the news story are not about Harte but instead are a criticism of the supreme court.

The Council concludes in its report that

“with regard to disciplining attorneys implicated in Operation Greylord, the Supreme Court has treated less prominent attorneys far more harshly than prominent ones with similar ethical lapses. This leads to the appearance that who you are or who you know may be more important to the result in the Supreme Court than the merits of the case itself. In addition, some of the lawyers who were not disciplined had contributed to the election campaigns of some members of the Supreme Court. This highlights the Supreme Court’s insensitivity to ethics and proper procedure and the problems inherent in a judicial selection system where judges must run for office and collect campaign contributions from lawyers who will appear before them.”

This conclusion, when coupled with plaintiff’s allegations that defendant Gilbert advised the Sun-Times reporter (the news story credited the statement to Gilbert) that “one example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Judge Richard LeFevour,” and plaintiff’s allegation on information and belief that defendant Gilbert specifically identified plaintiff by name to the reporter as one of the persons implicated in Greylord cases, resulted in the publication of the Sun-Times news story in which Harte is specifically named. The news story followed the Council’s release of its report to the press.

The Sun-Times story in pertinent part was as follows:

“State high court accused of favoritism on ethics
By Tom Gibbons.
The Illinois Supreme Court has shown a woeful lack of leadership in coping with judicial scandals and has shown favoritism to big-name lawyers charged with unethical conduct, a bar group said Thursday.
The Chicago Council of Lawyers issued a scathing report as it announced its evaluations of the nine judges running in the March 20 primary for two seats on the Supreme Court ***. ***
The 1,400 member group leveled strong criticism at the court’s ‘insensitivity to ethics’ — especially in the shadow of the Operation Greylord scandal. Jeffrey B. Gilbert, council president, said one example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Court Judge Richard LeFevour.
Though the lawyers — [RC.], William Harte, [W.M.] and [R.M.] — had no cases before LeFevour, they faced disciplinary action for giving money to a judge. Some of them also made campaign gifts to Supreme Court justices.
The Supreme Court refused to discipline the lawyers, but Gilbert said a lesser-known attorney, [W.K.], who was a middle-man between LeFevour and the four lawyers, had his law license suspended for two years.” Chicago Sun Times, February 9,1990, at 20, col. 1.

I would observe that unless the Council suggests that the reporter drew the names from some other source to flesh out the conclusion of favoritism in the report, there is no other conclusion that can be reached but that the questions asked of the Council’s spokesperson, Gilbert, and his answers given at the news conference or at another time before the story was written, identified Mr. Harte by name as one of the supreme court’s favorites.

I am troubled by certain conclusions of the majority with which I cannot agree.

With respect to the charge of “favoritism” the majority finds it to be apparent that the statement can be innocently construed as criticizing the supreme court and not the plaintiff. The majority then concludes that “[t]o be beneficiary of ‘favoritism,’ does not, as plaintiff implies, necessarily suggest wrongdoing on the part of the plaintiff in his relations with the court. One may be a favorite for any number of reasons that do not implicate any wrongdoing.” (220 Ill. App. 3d at 261.) I disagree with the conclusion.

Black’s Law Dictionary defines “favoritism” as “invidious preference and selection based on friendship and factors other than merit.” (Black’s Law Dictionary 548 (5th ed. 1979).) The Council’s report concludes that “who you are or who you know may be more important to the result in the Supreme Court than the merits of the case itself.” Given the context in which the statement is made here, the obvious conclusion to be drawn is that the one who dispenses favoritism and the one who receives favored treatment are equally suspect and culpable of the charged improper conduct. I submit that the majority’s conclusion that reference to plaintiff's disciplinary case and his “favored” treatment by the court was intended only as an illustration of defendants’ criticism of the court and was not defaming to plaintiff is not a valid conclusion.

I depart from the majority in its conclusion that the allegedly defaming words are capable of an innocent construction and therefore are not defamatory per se.

In addressing plaintiff’s allegation that Gilbert’s statement to the reporter identified plaintiff as an attorney “implicated in Operation Greylord,” the majority concludes that plaintiff’s own dictionary definition of the word “implicate,” i.e., “to involve intimately or incriminatingly,” renders defendants’ statement capable of a reasonable innocent interpretation and therefore is not defamatory per se. (Emphasis added.) (See 220 Ill. App. 3d at 261.) It concludes that the trial court found the alleged defamatory words to be capable of an innocent construction, dismissed the original complaint and refused to permit an amendment for defamation per se on the basis of a possible innocent construction.

I disagree that the phrase “implicated in Operation Greylord” conveys an innocent message. Because of its wide public disclosures, Operation Greylord connotes serious wrongdoing and corruption. To be implicated “intimately or incriminatingly” in Operation Greylord connotes to the reader that the party is closely connected to that specific serious wrongdoing and corruption. In my view, to hold that such a statement is not defamatory per se is completely contrary to any reasonable interpretation of the statement or the intent of its author. Therefore, I strongly disagree with the majority opinion and can find no reasonably innocent construction in the phrase “implicated in Operation Greylord.”

The modified innocent construction rule of Chapski v. Copley Press (1982), 92 Ill. 2d 344, 352, reiterated by the supreme court in Mittelman v. Witous (1989), 135 Ill. 2d 220, 232, 552 N.E.2d 973, states:

“ ‘[A] written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meaning; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff it cannot be actionable per se.’ (Mittelman, 135 Ill. 2d at 232, quoting Chapski, 92 Ill. 2d at 352.)

If the statement has reasonably “innocent construction” capabilities it should be so construed. Mittelman, 135 Ill. 2d at 232.

Here then the trial court was required to examine the statements in the context in which they were made and determine whether it was reasonable to interpret them as innocent, nondefaming statements.

For clarity we must repeat the statements plaintiff alleges are defamatory per se in the context in which they are alleged to have occurred.

In the Council’s report:

“with regard to disciplining attorneys implicated in Operation Greylord, the Supreme Court has treated less prominent attorneys far more harshly than prominent ones with similar ethical lapses. This leads to the appearance that who you are or who you know may be more important to the result in the Supreme Court than the merits of the case itself. In addition, some of the lawyers who were not disciplined had contributed to the election campaigns of some members of the Supreme Court. This highlights the Supreme Court’s insensitivity to ethics and proper procedure and the problems inherent in a judicial selection system where judges must run for office and collect campaign contributions from lawyers who will appear before them.”

In the press interview with news reporters, Gilbert is alleged to have said: “[0]ne example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Judge Richard LeFevour,” and is alleged to have specifically identified plaintiff by name to the reporter as one of the persons implicated in Greylord cases.

In the Sun-Times story reporting the contents of the Council’s report and the interview at which the report was released to the press:

“The Illinois Supreme Court has shown a woeful lack of leadership in coping with judicial scandals and has shown favoritism to big-name lawyers charged with unethical conduct, a bar group said Thursday.
The Chicago Council of Lawyers issued a scathing report as it announced its evaluations of the nine judges running in the March 20 primary for two seats on the Supreme Court ***. * * *
The 1,400 member group leveled strong criticism at the court’s ‘insensitivity to ethics’ — especially in the shadow of the Operation Greylord scandal. Jeffrey B. Gilbert, council president, said one example of alleged favoritism in Greylord cases involved several prominent lawyers who each gave $1,000 to convicted Circuit Court Judge Richard LeFevour.
Though the lawyers — [RC.], William Harte, [W.M.] and [R.M.] — had no cases before LeFevour, they faced disciplinary action for giving money to a judge. Some of them also made campaign gifts to Supreme Court justices.
The Supreme Court refused to discipline the lawyers, but Gilbert said a lesser-known attorney, [W.K.], who was a middle-man between LeFevour and the four lawyers, had his law license suspended for two years.” Chicago Sun-Times, February 9, 1990, at 20, col. 1.

Plaintiff has alleged the statements are false, that when they were made the Council and Gilbert knew them to be false and that the statements defaming Harte were made with malice and intended to accomplish the Council’s goals and without regard for the damage it would do to the plaintiff in his professional reputation.

In my view, taken together, the report, the alleged statements by Gilbert to the reporter and the news story which identifies Harte are more reasonably construed as defamatory to the plaintiff than as reasonably capable of an innocent construction. Therefore they are defamatory per se.

I would observe that there is a very fine line between appropriate comment and defamation/slander/libel. Where a “report” makes charges which, while intended to criticize the members of the judiciary who hold public office, portrays other nonpublic persons as near equal participants in alleged improper conduct, the obvious result is that one’s reputation built over a period of time can be destroyed or at a minimum greatly diminished in the dissemination of that report to the public.

A lawyer’s reputation, which includes his integrity and legal ability, is the foundation on which he builds his professional career. Where a lawyer has practiced for 30 or more years, as has the plaintiff here, any public charge of wrongdoing, lack of ability or want of integrity does immeasurable damage to the public’s perception of him as a respected member of the legal community. It is difficult to conceive of any way in which the damage done by defamatory comment can be corrected. Plaintiff is entitled to access to the courts for a full airing of his claim against the persons making such a charge and for the opportunity to prove the defaming statements to be untrue. I would reverse and remand.