author: MR. JUSTICE KLUCZYNSKI MR. CHIEF JUSTICE GOLDENHERSH,

text:
    (No. 51150.
    JAMES A. PETERSON et al., Appellees, v. LOU BACHRODT CHEVROLET COMPANY, Appellant.

      Opinion filed June 26, 1979.

      GOLDENHERSH, C.J., and MORAN, J., concurring in part and dissenting in part.
    Reno, Zahm, Fóigate, Skolrood, Lindberg 8c Powell, of Rockford (Robert K. Skolrood, Robert A. Fredrickson 8c Jack D. Ward, of counsel), for appellant.

      Brassfield, Cowan & Howard, of Rockford (Eugene E. Brassfield and William J. Howard, of counsel), for appellees.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

In our previous decision in this case, the court ruled that plaintiff could not recover damages from defendant, an automobile dealer, on a strict liability theory. (Peterson v. Lou Bachrodt Chevrolet Co. (1975), 61 Ill. 2d 17.) Plaintiff’s daughter was killed and his son was seriously injured in an accident allegedly caused by a defective braking system in a used car sold by defendant to a third party. Plaintiff returned to the circuit court of Winnebago County wherein he filed an amended complaint, alleging negligence on the part of defendant. The action proceeded to trial on a negligence theory, a jury returned a verdict in favor of defendant and against plaintiff, and the court entered judgment thereon. On appeal by plaintiff to the appellate court, the circuit court’s judgment was reversed and a new trial was ordered because of evidentiary errors. (61 Ill. App. 3d 898.) We have allowed defendant’s petition for leave to appeal.

On June 11, 1971, defendant sold a used 1965 Chevrolet to Cornelius Spradlin. Approximately three months later, on September 3, 1971, John Elder, a friend of Spradlin’s son, was driving the vehicle north on 20th Street near Rockford when he encountered a slight crest in the terrain as he approached Samuelson Road. Spradlin’s son, Bobby, was in the passenger seat, as was Kristina Ramsey, Bobby’s future wife. As he cleared the crest, Elder noticed that a pickup truck had stopped in front of him at the intersection of 20th and Samuelson to execute a left turn. Elder applied the brakes, and the car crossed the center line, striking an oncoming van. The car then veered to the right and eventually left the pavement, approximately 75 feet beyond the point of collision. The car struck an electrical pole on the southeast comer of 20th and Samuelson and came to rest in the middle of the intersection. Maradean Peterson, 11, and her brother, Mark, 8, were standing near the pole and were struck by the vehicle. Maradean was killed, and Mark suffered serious injuries. His left leg was later amputated. The father of the children, James, filed suit on their behalf. Following our decision in the previous appeal in this cause, plaintiff sought to establish liability of defendant on a negligence theory.

Although the main issues for the jury were whether defendant sold the automobile with defective brakes and, if so, whether defendant was negligent in so doing, evidence was also received from both parties on the question of the speed of the vehicle. This evidence would assist the jury in determining whether a causal connection existed between defendant’s negligence, if any, and the death of Maradean and the injuries of Mark.

John Elder, driver of the vehicle, stated in an evidence deposition which was read into the record as part of plaintiff’s evidence that he was driving at approximately 35 to 45 miles per hour before applying the brakes. The two passengers in the automobile, Bobby and Kristina, were also called upon by plaintiff to relate their opinion of the speed of the vehicle. Bobby said that it was moving at approximately 45 to 50 miles per hour, and Kristina gave an estimate of 40 to 50 miles per hour.

Also called to the stand by plaintiff was Charles K. Brackett, a tow-truck operator who removed the vehicle from the scene of the accident. He testified that, in his opinion, the vehicle was moving at approximately 25 miles per hour when it struck the electrical pole on the southeast .corner of 20th and Samuelson. Brackett, with 12 years experience as a tow-truck operator, based his opinion on an examination of damage to the vehicle. Unlike the occupants of the vehicle, Brackett did not personally witness the occurrence. Defendant’s attorney objected to the questioning of Brackett on the issue of speed, but the objection was overruled, the court saying, “I would like to hear the answer.”

Defendant also produced witnesses who testified as to the speed of the vehicle, some of whom personally witnessed the occurrence and some of whom, like Brackett, did not. Marvin Beard was driving an automobile in the same direction as Elder, and he testified that the Elder vehicle passed him about 500 feet from the intersection of 20th and Samuelson at 65 miles per hour or more. Beard also stated that he did not see the brake lights on the Elder vehicle go on. Because of the crest in the terrain, Beard did not see the accident.

Noneyewitness testimony introduced by defendant was provided, by Officer Gary Maitland and Kenneth Packer. Maitland arrived at the scene shortly after the accident and made a diagram of skid marks and various reference points. At trial, he estimated that the vehicle was moving at 75 to 80 miles per hour, basing his opinion on the path of the vehicle, the length of its skid marks, and the damage sustained. His diagram of the accident scene was admitted into evidence for the purpose of illustrating testimony and argument, but it was not to be taken into the jury room. The diagram was later withdrawn, and an enlarged, more carefully drawn substitute was admitted in its stead with similar restrictions on its use. This substitute was prepared by an employee of Packer and was based on his examination of photographic exhibits as well as Officer Maitland’s diagram. Packer holds multiple academic degrees, including a doctorate in industrial engineering, and he had worked extensively on various types of braking systems. In his testimony, he estimated that the vehicle was moving in excess of 73 miles per hour while approaching the accident scene, in excess of 38 miles per hour at the point at which it left the pavement, and in excess of 23 miles per hour when it hit the pole.

As is apparent from our recitation of the evidence admitted on the issue of speed, a substantial portion was noneyewitness, reconstruction testimony. Because of a preference for eyewitness testimony, prior holdings have placed restrictions on the admissibility of reconstruction testimony. In Plank v. Holman (1970), 46 Ill. 2d 465, 471, the court held that reconstruction testimony “may be used in addition to eyewitness testimony” if it is determined that “it is necessary to rely on knowledge and application of principles of science beyond the ken of the average juror.” Two years later, in McGrath v. Rohde (1972), 53 Ill. 2d 56, 61, the court again held that it is not proper to supplement eyewitness testimony with reconstruction testimony if the factual matters to be resolved do “not require a scientific knowledge beyond that of typical jurors.”

Because we believe that the speed of an automobile is not a matter beyond the ken of the average juror (Delaney v. Badame (1971), 49 Ill. 2d 168, 178), we hold that the circuit court erred in admitting reconstruction testimony. The jurors could draw their own conclusions on the basis of eyewitness testimony.

We do not agree, as defendant argues, that the admission of the reconstruction testimony was harmless error. As defendant points out, the estimates of speed given by reconstruction witnesses were consistent with those given by some of the eyewitnesses. These reconstruction estimates, however, contradicted the testimony of other eyewitnesses, and we cannot safely say that the jury was not influenced by the inadmissible reconstruction testimony. In this respect, the case differs materially from Diederich v. Walters (1976), 65 Ill. 2d 95, 104-05, cited by defendant, wherein the court held that the erroneous admission of reconstruction testimony was harmless. The factual matters to be resolved here were closely contested, and the determination of these questions would depend largely on the jurors’ view of the credibility of witnesses and the weight to be assigned to their testimony. The inadmissible evidence may well have been determinative, and a new trial is therefore necessary. We note that our disapproval of the reconstruction testimony admitted in this case also extends to that of plaintiff’s witness, Brackett.

Also raised by the parties is the issue of whether Maitland’s diagram and the enlargement prepared by Packer’s employee are admissible. Because these diagrams might again be offered for some purpose other than illustrating reconstruction testimony, we address this issue, and we agree with the appellate court that the diagram prepared by Maitland “is confusing, difficult to understand and would not in any way be helpful to the jury in deciding this case” (61 Ill. App. 3d 898, 904). We therefore find no abuse of discretion on the part of the circuit court in withdrawing the diagram. We also find that the diagram is misleading and inadmissible for this further reason. A comparison of the diagram with photographic exhibits reveals that Maitland failed to diagram four parallel skid marks that were apparently caused by another vehicle, probably a semitrailer or other truck with four parallel tires. In fact, it appears that Maitland may have attributed at least one of these marks to the Elder vehicle, thereby improperly lengthening the marks allegedly left by that vehicle. Defendant cites Smith v. Ohio Oil Co. (1956), 10 Ill. App. 2d 67, for the proposition that the only limitation on the admissibility of demonstrative evidence such as the diagram of Maitland is that it be relevant and explanatory. We note, however, that the exhibit involved in Smith was found to be “relevant, legitimate and helpful” (emphasis added) (10 Ill. App. 2d 67, 77) and that the appellate court there indicated that misleading exhibits should not be admitted (10 Ill. App. 2d 67, 76). We therefore hold that the diagram should not have been admitted because it was misleading. Because Packer’s diagram was based in part on Maitland’s diagram, it too is inadmissible.

In addition to his reconstruction testimony, Packer also gave his opinion on whether the braking system on the Elder vehicle was defective. Plaintiff challenges Packer’s qualifications to testify as an expert on this subject, but we agree with the appellate court that Packer was so qualified. Among his academic degrees, Packer held a doctorate in industrial engineering. He also had approximately 19 years experience in working with braking systems, including those of automobiles.

Although his brief is not entirely clear on this point, it appears to be plaintiff’s contention that, if Packer is allowed to testify as an expert on the subject of braking systems, he must do so in response to hypothetical questions rather than upon his examination of the exhibits. With this we do not agree. In a hypothetical question a witness is asked to assume certain facts to be true. (Clifford-Jacobs Forging Co. v. Industrial Com. (1960), 19 Ill. 2d 236, 243.) Such questions are not necessary if the expert witness may personally observe the subject of his testimony (Borowski v. Von Solbrig (1973), 14 Ill. App. 3d 672, 687, aff'd (1975), 60 Ill. 2d 418), and we believe that the exhibits sufficiently represent the condition of the braking system to support Packer’s testimony without the use of hypothetical questions. The exhibits in question are one of two brake shoes from the left front braking system on the Elder automobile and two photographs of that system. Packer testified that, in his opinion, markings on the braking system, as photographed, indicated that all parts were in place when the vehicle was last operated. He also stated that the brake shoe showed no sign of unusual wear. Under these circumstances, a hypothetical question was not necessary. If, upon remand, Packer is again called upon to express his opinion on the subject of the braking system, he may give that opinion on the basis of his examination of the exhibits.

The final issue raised by the parties is whether plaintiff may recover the value of free medical services rendered by the Shriners’ Hospital for Crippled Children in performing surgery on Mark Peterson’s leg. Contrary to plaintiff’s argument, we believe that the holding of Jones & Adams Co. v. George (1907), 227 Ill. 64, 69, is still good law and is controlling. In the George case, the court held that a personal injury plaintiff could not recover for the value of nursing services rendered by the plaintiff’s family. The reasoning of the decision is sound and, we believe, fully applicable here. An individual is not entitled to recover for the value of services that he has obtained without expense, obligation, or liability. (Accord, Coyne v. Campbell (1962), 11 N.Y.2d 372, 183 N.E.2d 891, 230 N.Y.S.2d 1.) We see no need to abandon precedent, as we perceive no erosion of the principle upon which the George case is based; the policy behind the collateral-source rule simply is not applicable if the plaintiff has incurred no expense, obligation, or liability in obtaining the services for which he seeks compensation. This is further made apparent upon comparison of the present case with a situation in which the collateral-source rule is frequently applied, that of the defendant who seeks a reduction in damages because the plaintiff has received insurance benefits. “It is a well-settled rule of damages that the amount recoverable for tortious personal injuries is not decreased by the fact that the injured party has been wholly or partly indemnified for the loss by proceeds from accident insurance where the tortfeasor did not contribute to the payment of the premiums of such insurance. This rule is usually justified on the basis that the wrongdoer should not benefit from the expenditures made by the injured party in procuring the insurance coverage. ” (Emphasis added.) (22 Am. Jur. 2d Damages sec. 210, at 293-94 (1965).) In a situation in which the injured party incurs no expense, obligation, or liability, we see no justification for applying the rule. We refuse to join those courts which, without consideration of the facts of each case, blindly adhere to “the collateral source rule, permitting the plaintiff to exceed compensatory limits in the interest of insuring an impact upon the defendant.” (Note, Unreason in the Law of Damages: The Collateral Source Rule, 77 Harv. L. Rev. 741, 742 (1964) (hereafter\ Unreason).) The purpose of compensatory tort damages is to compensate (Restatement (Second) of Torts sec. 903, comment a (1979)); it is not the purpose of such damages to punish defendants or bestow a windfall upon plaintiffs. The view that a windfall, if any is to be enjoyed, should go to the plaintiff (Grayson v. Williams (10th Cir. 1958), 256 F.2d 61, 65) borders too closely on approval of unwarranted punitive damages, and it is a view not espoused by our cases.

The argument has also been made that one who renders services gratuitously intends to bestow a gift, and that allowing a defendant to mitigate damages in this situation effectively shifts the benefit to the defendant. We do not believe, however, that presumed intentions should play so important a role in our analysis. We are concerned more with discerning the actual effect upon the parties, and we believe that justice is better served in this way. “[T]o permit mitigation does not deprive the plaintiff of all benefit, since he did have the services when he needed them and without cost. Awarding him the monetary value of the services in a judgment probably rendered several years later seems an unanticipated windfall.” Unreason, 77 Harv. L. Rev. 741, 752.

The judgment of the appellate court is affirmed, and the cause is remanded to the circuit court of Winnebago County for further proceedings not inconsistent with the views expressed herein.

Affirmed and remanded.

MR. CHIEF JUSTICE GOLDENHERSH,

concurring in part and dissenting in part:

I dissent from that portion of the opinion which holds that evidence of reasonable value of the services rendered plaintiff by the Shriners’ Hospital for Crippled Children is inadmissible. I agree with the well-reasoned holding of the appellate court that the evidence was admissible and the reasonable value of the services recoverable.

The infirmity of the majority’s position is demonstrated by the fact that application of its rationale to an action involving a claim for the destruction of an automobile which the owner had received as a gift would result in the holding that because it had cost him nothing there could be no recovery for its destruction. I am certain that the contributors who made it possible for the Shriners’ Hospital, without compensation, to render the type of medical services which plaintiff received, intended that the plaintiff, and not the tortfeasor, be the beneficiary of their largess.

MR. JUSTICE MORAN joins in this partial concurrence and partial dissent.


source: Caselaw Access Project

author: MR. JUSTICE CLARK

license: Public Domain

text:
    (No. 50462.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. SIDNEY FOSTER, Appellee.

      Opinion filed June 29, 1979.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay and Melbourne A. Noel, Jr., Assistant Attorneys General, of Chicago, and Lee T. Hettinger, Iris E. Sholder, and Joseph P. Quirk, Assistant State’s Attorneys, of counsel), for the People.
    Ellis E. Reid, of Chicago, for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

A jury in the circuit court of Cook County convicted the defendant, Sidney Foster, of murder and concealment of a homicidal death in connection with the death of Vivian Patterson. With one judge dissenting, the appellate court reversed and remanded (56 Ill. App. 3d 22), holding (1) that the State had failed to prove beyond a reasonable doubt that defendant had caused the death of the victim, (2) that the State had failed to prove defendant’s sanity at the time of his concealment of the victim’s homicidal death, and (3) that the trial court had committed plain error by failing to hold a hearing to inquire into the defendant’s alleged in competency to stand trial. We granted the State’s petition for leave to appeal, and we now reverse.

We turn first to the alleged insufficiency of the evidence as to the cause of the decedent’s death. (The length of the record in this case (over 2,000 pages) precludes effective summarization of its every nuance. We therefore will set forth only such evidence as is necessary to illustrate the error of the appellate court’s holding on this issue.) The defendant, who was a music promoter, had lived with the decedent, who was a singer, and her four children for approximately 2Vz years at the time of her death. The relationship between the defendant and the victim was complicated by defendant’s transsexuality; i.e., he considered himself a woman. Nonetheless, the defendant claimed to be the father of the victim’s 12-year-old son, Solomon. Solomon, however, testified over defendant’s objection that the defendant had forced him to engage in homosexual behavior with the defendant.

Chicago Police Officer Patrick Carroll testified that, as reflected in his official police report on the day after the defendant’s arrest, Diane Adams, an acquaintance of the defendant, told him and other police officers that early in December 1973 the defendant had told her that he was distressed by the possibility that the decedent would move to California without him, taking Solomon away from him. At trial, Ms. Adams denied having made the foregoing statement to police.

On or about December 18, 1973, the defendant borrowed a .38-caliber Roehm revolver and six .38-caliber bullets from Edward Thomas, a musician, telling Thomas that he (defendant) needed the gun because of harassment in connection with his music recording business. The defendant refused to handle the gun in Thomas’ presence, and Thomas placed the gun and ammunition in a camera case that the defendant had brought with him for that purpose.

During most of the Christmas holiday period the decedent’s children were out of the apartment, staying with their mother’s ex-husband, Lucius Hudson. One of the children, Sandra Hudson, visited the apartment on December 27 or 28, at which time she saw her mother, but when Sandra visited again on December 29 or 30, she did not see her mother. Defendant told Sandra that the decedent was in California. Solomon, too, was unable to reach his mother when he called home on or about December 29, and defendant told him also that his mother was in California.

Sometime during the day of December 31, 1973, Edward Thomas called the defendant, asking for the return of his gun. At about 5:30 or 6:30 that evening, the defendant returned the weapon to Thomas, but returned only two of the six bullets, telling Thomas that “he thought he got the dude and wouldn’t be needing the gun any more.”

On or shortly before that same evening, the defendant offered $5,000 each to Wilbur Richburg and Marvin Morgan to dispose of decedent’s body. Both Richburg and Morgan testified that they observed the decedent’s deteriorating corpse at this time, though their testimony is not completely consistent as to whether this occurred on or before New Year’s Eve. Neither, however, testified to seeing Solomon at the apartment, and Solomon testified that he was at home New Year’s Eve.

Upon their return home from Lucius Hudson’s house, the decedent’s children noticed a “bad smell” coming from their mother’s locked bedroom. Sometime in mid-January, Richburg and Morgan returned to the decedent’s apartment, where they dismembered her corpse and transported it to the trunk of defendant’s car, where police officers discovered it on January 23, 1974. The State’s medical expert testified that death was due to bullet wounds, and the State’s firearms expert testified that a .38-caliber bullet recovered from the corpse had characteristics consistent with its having been fired from a .38-caliber Roehm revolver. However, about four days after defendant returned the revolver to Edward Thomas, Thomas loaned it to someone else, who disposed of it while being pursued by police officers in connection with another matter. Because the revolver was not recovered, the State neither was able to demonstrate that the weapon which the defendant had borrowed was the same weapon, nor even the same model as that which had fired the bullet recovered from the victim.

Two defense witnesses and one State witness who was a friend of the defendant testified that they had spoken with the decedent after December 31, 1973. The defendant’s theory was that someone known as “Jiggy” or “T-bone” had killed the decedent, but the defendant gave different motives at different times for Jiggy’s alleged action. At one time defendant claimed that the motive involved sex, at another time he claimed it involved drug traffic. At one time he even suggested that “Jiggy” and two accomplices had dismembered and disposed of decedent’s corpse.

The appellate court held that, as a matter of law, the foregoing evidence left a “reasonable doubt” of the defendant’s guilt. We disagree.

“This court has often held that it is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given to their testimony and the inferences to be drawn from the evidence. [Citations.] Where the evidence is merely conflicting a court of review will not substitute its judgment for that of the trier of fact. [Citation.]” (People v. Akis (1976), 63 Ill. 2d 296, 298-99.) Nor has the State failed to exclude every reasonable hypothesis consistent with innocence. (Cf., e.g., People v. Garrett (1975), 62 Ill. 2d 151, 163.) The State may exclude the defendant’s theory by introducing evidence which indicates that the defendant is lying, because the jury is not required to believe the defendant. (People v. Heflin (1978), 71 Ill. 2d 525, 533-34.) Rather, time after time, this court has articulated the following standard: “The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt.” People v. Bernette (1964), 30 Ill. 2d 359, 367; People v. Marino (1970), 44 Ill. 2d 562, 580; People v. Williams (1977), 66 Ill. 2d 478, 485.) The evidence here satisfied that standard.

We note here our agreement with the appellate and circuit courts’ rejection of the defendant’s objections to the admission into evidence of (1) Solomon’s testimony as to his relationship with the defendant and (2) four exceptionally gruesome photographs depicting the condition of the decedent’s corpse, as found by the police. As to the first point, the law is clear: Evidence which is otherwise admissible to establish motive is not rendered inadmissible by its potentially prejudicial impact. “Of course the guilt of an accused cannot be established by proving that he committed other offenses and so is an evil man and therefore more likely to have committed the crime charged. But evidence that tends to prove a fact in issue in the case is admissible even though it discloses that the defendant committed another crime. So evidence that tends to prove motive or intent, identity, knowledge, absence of mistake or accident, and the like, is admissible although it may also involve proof of a separate and distinct offense by the accused.” (People v. Harvey (1957), 12 Ill. 2d 88, 91 (evidence of incestuous relationship with daughter).) Solomon’s testimony not only was relevant, but was central to the establishment of defendant’s motive for killing Solomon’s mother, because that testimony tended to establish a reason why defendant would fear the decedent’s taking Solomon away from him, to California or elsewhere, regardless of decedent’s alleged ignorance of the relationship between Solomon and the defendant. Accordingly, Solomon’s testimony properly was admitted. See also People v. Branion (1970), 47 Ill. 2d 70, 77 (evidence of adultery), cert. denied (1971), 403 U.S. 907, 29 L. Ed. 2d 683, 91 S. Ct. 2213.

The four color photographs of the decedent’s decaying and dismembered body which were admitted at trial are quite gruesome, and defendant contends that the admission of all four was cumulative, unnecessary, and calculated only to prejudice and inflame the jury. We disagree. This court has, on many occasions, considered the problem of the admissibility, in a homicide prosecution, of photographs depicting the condition of the decedent. See, e.g., People v. Owens (1976), 65 Ill. 2d 83, 90, cert. denied (1977), 430 U.S. 955, 51 L. Ed. 2d 805, 97 S. Ct. 1600; People v. Henenberg (1973), 55 Ill. 2d 5, 13-14; People v. Nicholls (1969), 42 Ill. 2d 91, 99, cert. denied (1970), 396 U.S. 1016, 24 L. Ed. 2d 507, 90 S. Ct. 578; People v. Speck (1968), 41 Ill. 2d 177, 202, death penalty vacated sub nom. Speck v. Illinois (1971), 403 U.S. 946, 29 L. Ed. 2d 855, 91 S. Ct. 2279, on remand (1972), 52 Ill. 2d 284; People v. Lefler (1967), 38 Ill. 2d 216, 221; People v. Myers (1966), 35 Ill. 2d 311, 331, cert. denied (1967), 385 U.S. 1019, 17 L. Ed. 2d 557, 87 S. Ct. 752; People v. Hoffman (1965), 32 Ill. 2d 96, 100; People v. Kolep (1963), 29 Ill. 2d 116, 124; People v. Adams (1962), 25 Ill. 2d 568, 573; People v. Jackson (1956), 9 Ill. 2d 484, 490-91, appeal after remand (1966), 23 Ill. 2d 263; People v. Jenko (1951), 410 Ill. 478, 482.

Almost three decades ago, in Jenko, the court set forth the rule which it has since adhered to:

“Evidence having a natural tendency to establish the facts in controversy should be admitted. A party cannot have competent evidence excluded merely because it might arouse feelings of horror and indignation in the jury. Any testimony concerning the details of a murder or other violent crime may have such tendencies, but manifestly this could not suffice to render it incompetent. Of course, where spectacular exhibits having little probative value are offered for the principal purpose of arousing prejudicial emotions they should be promptly excluded. But questions relating to the character of the evidence offered, and the manner and extent of its presentation, are largely within the discretion of the trial judge, and the exercise of that discretion will not be interfered with unless there has been an abuse to the prejudice of the defendant.” (410 Ill. 478, 482.)

That rule has been applied in a variety of situations. In Jenko, the admission of photographs depicting stab wounds, with a two-inch rule opposite the wounds for purposes of comparison, was held not to be an abuse of discretion, in that they tended to demonstrate “[t] he fact and cause of death, the number and location of the wounds, the manner in which they were inflicted, and the wilfulness of the acts in question *** [all of which were] material to the offense charged.” (410 Ill. 478, 482.) In People v. Jackson (1956), 9 Ill. 2d 484, 490-91, however, the issue involved “a photograph of the deceased taken at the hospital after the autopsy. It show[ed] the face and neck of an obese Negro lady with her mouth slightly open and her eyes nearly shut. And there appear [ed] rather distinctly some of the sutures of the autopsic incision,” “a feature which accentuated its inflammatory character.” The court reasoned that, in that case, the autopsic incisions tipped the balance against admissibility of the photograph, and ordered that, at defendant’s new trial (which he had won on other grounds), the photograph must be excluded. The court went on to add that, “[m] indful of the prejudicial emotion that might be aroused by the introduction of a victim’s photograph, the courts have, on the whole, been strict in their requirement that a proper purpose be shown for the introduction of such an exhibit.” (9 Ill. 2d 484, 490.) This court relied upon Jackson in a subsequent case, People v. Lefler (1967), 38 Ill. 2d 216, 221, wherein it disapproved the admission of color photographs of the victim taken during autopsy and projected on a 44-inch by 26-inch screen at trial. In general, however, the “strict requirement” of a “proper purpose” articulated in Jackson has eroded to a large extent in subsequent cases.

In People v. Hoffman (1965), 32 Ill. 2d 96, 100, for example, the court found no abuse of discretion in the admission of three photographs depicting the wound- and burn-covered nude body of the decedent from different angles, despite the court’s belief that “[t] he pictures depict a brutal and intentional crime by a sadist and are bound to arouse feelings of horror and disgust in a normal person.” Similarly, in People v. Speck (1968), 41 Ill. 2d 177, 202, the court found no abuse of discretion in the admission of photographs depicting the condition and position of several victims of a multiple murder. The court noted that the photographs corroborated “to some extent” the testimony of the sole surviving occurrence witness, showed premeditation and planning, and rebutted defendant’s claim of having suffered an “insane frenzy.” (41 Ill. 2d 177, 203.) The court stated a less strict standard than Jackson’s in ruling: “It is the rule that where photographs are relevant to establish any fact in issue that they are admissible in spite of the fact that they may be of a gruesome nature.” (41 Ill. 2d 177, 202.) Also, in People v. Henenberg (1973), 55 Ill. 2d 5, 13-14, the court held that, despite extensive oral testimony on the same subject, three photographs, one in color and two in black and white, depicting the decomposed skull and left arm of the decedent properly were admitted to corroborate testimony as to the cause of death and identity of the victim. It is also clear that a defendant’s offer to stipulate as to the matters shown by photographs does not render them inadmissible. People v. Speck (1968), 41 Ill. 2d 177, 202-04; People v. Nicholls (1969), 42 Ill. 2d 91, 99.

The underlying problem is that photographs depicting the condition of the decedent normally are probative of one or more issues, such as manner or cause of death, means used, and location of the events in question. That such photographs potentially are prejudicial to the defendant is due largely to their accurate depiction of a horrible crime. While juries are carefully instructed as to the importance of considering each item of evidence only for particular purposes and not for others, candor compels us to recognize the potentially prejudicial impact of evidence which illustrates the gruesome nature of the offense charged in cases where the criminal responsibility of the accused is at issue because of an alleged “mental disease or defect.” Nonetheless, faith in the ability of a properly instructed jury to separate issues and reach a correct result is the cornerstone of the jury system, and defendant’s brief in this court does not allege, nor does the record indicate, that the jury was improperly instructed as to the purposes for which the photographs were offered.

The major bulwark against prejudicing the jury is the sound discretion of the trial judge. Here, the photographs were probative of the time and manner of the homicidal death and the circumstances of its concealment, which included dismemberment. The admission of all four was not an abuse of discretion.

The appellate court also held that the State had failed to establish defendant’s sanity at the time of his concealment of decedent’s death. Here too, the appellate court invaded the province of the jury. The well-established rule in Illinois is that once a defendant introduces evidence which, if believed, would create a reasonable doubt as to whether, at the time of the alleged crime, “as a result of a mental disease or mental defect,” the defendant possessed “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law” (Ill. Rev. Stat. 1971, ch. 38, par. 6 — 2), the burden shifts to the State to prove beyond a reasonable doubt that the defendant possessed the requisite mental capacity at the time of the alleged crime. (People v. Redmond (1974), 59 Ill. 2d 328, 336-38.) In the instant case, defendant’s expert witness testified that, on the basis of his 90-minute interview with the defendant approximately 18 months after the crime in question, it was his expert opinion that, at the time of the events in question, the defendant “did not have the capacity to recognize and appreciate the intent and severity of the act of what he was doing.”

This testimony, which was the opinion of a qualified expert witness, adduced in response to a question posed in terms of the language of section 6 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 6 — 2) quoted in Redmond, was sufficient to shift the burden of proof on this issue to the State. However, defendant’s expert witness later admitted that his opinion was based on his belief that the defendant had not committed the homicide but instead had been traumatized by witnessing “Jiggy’s” commission of the crime. Accordingly, by proving beyond a reasonable doubt that defendant had committed the homicide, the State also completely undercut the foundation for the expert opinion. In addition, the State demonstrated, through the testimony of other witnesses, that the defendant understood that his actions were unlawful and that the decedent’s children would always hate him for what he had done. The State also presented evidence which, if believed, demonstrated the defendant’s immediate, elaborate efforts to concoct a story about “Jiggy,” and his deliberate pattern of first obtaining a gun, concealing it from the decedent, killing her while no one else was around, and later concealing her death. His elaborate, untruthful stories tended to establish his understanding of the criminality of his conduct, and his stealth in killing the decedent tended to establish his capacity to have conformed his behavior to the requirements of law, if he had so chosen. Although Diane Adams testified that she thought the defendant was insane, and although defendant claims that his suicide attempt while in custody demonstrates insanity, the weight to be given these matters and the other evidence was a question for the jury, whose verdict, on this record, should not have been overturned. Cf., e.g., People v. Redmond (1974), 59 Ill. 2d 328, 339, People v. Ward (1975), 61 Ill. 2d 559, 568.

The third alternative ground on which the appellate court reversed the defendant’s conviction was its holding “that the suggestion of mental incompetency raised by defense counsel *** sufficiently raised the issue of defendant’s fitness to stand trial, and it was error for the trial court to proceed before conducting a fitness hearing pursuant to section 5 — 2—1 of the Unified Code of Corrections.” (56 Ill. App. 3d 22, 38.) There are several problems with this holding. The first problem is that, in his post-trial motion filed pursuant to section 116 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 116 — 1), the defendant did not allege that the trial court’s refusal to hold a competency hearing was erroneous. This waived the issue. (People v. Precup (1978), 73 Ill. 2d 7, 16.) Nor does the savings clause of Rule 615(a) (58 Ill. 2d R. 615(a)) regarding “[pjlain errors or defects affecting substantial rights” apply here. “ ‘Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed.’ ” (People v. Coles (1979), 74 Ill. 2d 393, 397, quoting People v. Precup (1978), 73 Ill. 2d 7, 17.) The defendant claims that, despite his failure to preserve any record of the proceedings on his motion for a competency hearing, the alleged error is plainly apparent from the motion itself. The motion, however, merely recites that counsel “had reasonable cause to believe that defendant may be presently insane or otherwise so mentally incompetent as to be unable to understand the proceedings against him or properly to assist in his own defense, and to have been so at the time of the alleged offense of concealment of a homicide.” Ignoring, for the moment, counsel’s confusion of two separate and distinct issues (i.e., lack of criminal responsibility due to lack of the requisite mental capacity at the time of the crime vs. inability to assist in one’s own defense at the time of trial (cf. generally, People v. Manning (1979), 76 Ill. 2d 235; People v. Lang (1979), 76 Ill. 2d 311)), it is settled law in Illinois that counsel’s mere assertion that he has reason to believe that the defendant may be unable to understand the charges or assist in his defense is not sufficient to create the “bona fide doubt” of defendant’s fitness which triggers the obligation to hold a fitness hearing pursuant to section 5 — 2—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1). (Compare People v. Foley (1963), 28 Ill. 2d 426, 428, with People v. Thomas (1969), 43 Ill. 2d 328, 332-33.) Rather, the court must be presented with facts creating a bona fide doubt of defendant’s fitness, and the motion in this case presented no such facts. (We note in passing that, on the basis of the record before us, no claim can be made that the necessary facts were not disclosed because they were protected against disclosure by the attorney-client privilege. (Cf. generally, Holloway v. Arkansas (1978), 435 U.S. 475, 487 n.11, 55 L. Ed. 2d 426, 436 n.11, 98 S. Ct. 1173, 1180 n.11. (Facts necessary to the establishment of an attorney’s conflict of interest may fall within the scope of the attorney-client privilege and their disclosure may be prejudicial to the client.)) Accordingly, the appellate court erred in deciding this issue.

Defendant also argues that the judgment of the appellate court ought to be affirmed on two grounds previously rejected by that court. First, defendant contends that the circuit court erred in rejecting as untimely his motion to suppress the fruits of a search of the decedent’s apartment. The record, however, unequivocally supports the decision of the circuit court on this question. On the fourth day of defendant’s trial, in the midst of the State’s examination of one of its witnesses, Officer Savage, the defendant’s attorney orally moved to suppress the fruits of a search of the decedent’s bedroom. (The specific items sought to be suppressed are nowhere identified in defendant’s brief in this court. However, according to the State, these items included bloodstained bedsheets and a photograph of a bloodstained mattress.) The State objected to the motion, because the defendant had notice, in the form of a police report made available during discovery, that a search of the decedent’s bedroom had occurred. The police report made no mention of any search warrant having been obtained prior to that search. Since the only apparent ground for defendant’s motion to suppress the evidence seized from the bedroom was the failure of the police to obtain a warrant prior to their search, the defendant had notice of the grounds for his motion prior to trial.

The rule in this State is clear. A motion to suppress the fruits of an illegal search must be made in writing, and prior to trial, except where fundamental fairness requires otherwise, such as where the defense did not have adequate notice of the grounds for such a motion. (People v. Johnson (1967), 38 Ill. 2d 399, 402-03.) No such circumstances are presented here.

This rule serves important purposes, in that it permits the more orderly and expeditious trial of the question of the guilt or innocence of the accused, yet still gives the accused an adequate opportunity to litigate collateral issues involving alleged violations of his constitutional rights. (See 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 476-77 (1978).) The rule must be enforceable if its purposes are to be served. The circuit court properly applied the rule here, and its judgment on this issue accordingly is affirmed.

Finally, defendant contends: “The prosecutor in the trial of this case clearly withheld evidence favorable to the defense. This we contend is a violation of the rule in Brady v. Maryland, 373 U.S. 83, [10 L. Ed. 2d 215,] 83 S. Ct. 1194 (1963). This is so even though the evidence came out at trial because the defendant would have been better able to prepare his defense had he had this information prior to trial. ” (Emphasis in original.)

Neither defendant’s brief in this court nor his post-trial motion in the trial court expressly identifies the evidence allegedly “withheld” by the State. While the brief’s “Statement of Facts” refers to a detailed description of Jiggy and the other two alleged offenders contained in some handwritten notes of Investigator Bobko which had been suppressed from discovery, the opinion of the appellate court states that “[t]he particular evidence claimed to be secreted was the fact that Mr. Samuel Thomas had seen the victim alive after January 1, 1974” (56 Ill. App. 3d 22, 37), and defendant’s brief in this court states that “[t] he facts relevant to this appeal are correctly stated in the opinion of the appellate court.” The only reasonable reading of defendant’s brief is that his allegation of error on this issue, to the extent that it has been preserved at all, is confined to the alleged “withholding” of the statement of Samuel Thomas, regarding his having seen the decedent alive on January 4, 1974. The record indicates that, about a week before he testified, Thomas told the prosecution of having seen the decedent sometime during the first week in January, but that the prosecutor did not relay this information to the defense. In the hearing on defendant’s post-trial motion, the prosecutor told the court that defense counsel learned of Thomas’ statement on the morning he testified. That testimony also was heard by the jury, in response to a question put by defense counsel on cross-examination. Because the evidence in question was heard by the jury, its alleged suppression does not literally fall within the scope of Brady, as restated in United States v. Agurs (1976), 427 U.S. 97, 103, 49 L. Ed. 2d 342, 349, 96 S. Ct. 2392, 2397. Defendant, however, claims that the approximately one-week delay in his learning of Thomas’ statement so hampered the preparation of his defense as to have denied him a fair trial and calls for an extension of Brady. We find that argument unpersuasive on this record. Defense counsel knew of Thomas’ statement before he took the stand. If that statement was so earthshaking as to require complete reorganization of the defendant’s case, counsel should have asked for a continuance or recess for that purpose before Thomas testified. His failure to do so is persuasive evidence that the prejudice here alleged was in fact trivial.

For the foregoing reasons, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court reversed; circuit court affirmed.


author: MR. JUSTICE RYAN

text:
    (No. 51652.
    CLINTON THURSTON, Adm’r, Appellee, v. THE STATE BOARD OF ELECTIONS et al., Appellants.

      Opinion filed August 1, 1979.

    Rehearing denied September 28, 1979.

    GOLDENHERSH, C.J., took no part.

      William J. Scott, Attorney General, of Springfield (Kenneth G. Anspach, Assistant Attorney General, and Samuel W. Witwer, Special Assistant Attorney General, of Chicago, of counsel), for appellant State Board of Elections.
    Saul J. Morse, of Springfield, for appellant Stephen L. Spomer.
    Brown, Hay & Stephens, of Springfield (Edward J. Cunningham and Mark H. Ferguson, of counsel), for appellants Max G. Bevill et al.

    Londrigan & Potter, P.C., of Springfield, for appellee.
   MR. JUSTICE RYAN

delivered the opinion of the court:

The circuit court of Sangamon County enjoined the State Board of Elections from certifying Stephen Spomer as the winner in an election for resident circuit judge of Alexander County. Spomer was nominated by the Alexander County Republican Central Committee after the Republican Party failed to nominate a candidate at the primary election. After the general election, at which Spomer was the winner, Oris Vick, an Alexander County voter and Democratic precinct committeeman (now deceased), and Robert Lansden, the Democratic candidate who opposed Spomer at the general election, brought the action to enjoin the certification of Spomer. The Sangamon County circuit court issued a permanent injunction against the State Board of Elections, holding that the statutory procedure for filling a vacancy in the nomination, which was followed by the Alexander County Republican Central Committee, and the Board of Elections Regulation 7 — 1, which approved that procedure, are contrary to the provisions of section 12(a) of article VI of the Constitution of 1970. The defendants, Stephen Spomer and the State Board of Elections, were allowed a direct appeal to this court pursuant to Rule 302(b) (58 Ill. 2d R. 302(b)).

On March 21, 1978, Robert Lansden was nominated at the primary election to be the Democratic candidate for resident circuit judge of Alexander County. The Republican Party listed no candidates on the primary ballot, and no Republican write-in candidate filed the necessary nomination papers after the primary. Shortly after the primary, Lansden wrote to the State Board of Elections to inquire about opposing candidates. The Board responded that no person had qualified but noted that a candidate could be nominated by the Republican Central Committee. The letter advised Lansden that he would be told if anyone did qualify as a candidate.

On July 26 the Alexander County Republican Central Committee, pursuant to the provisions of section 7 — 61 of the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 7 — 61), nominated Stephen Spomer as the Republican candidate for circuit judge, and on July 27 appropriate nominating documents were filed for Spomer. Because of our decision based on the issues discussed below, we make no determination as to whether plaintiffs’ complaint for declaratory judgment and injunction was a proper method of seeking relief after the general election.

On July 27 the Cairo Evening Citizen published a front-page story on the nomination, and Lansden personally acknowledged the upcoming political contest when he met Spomer at a local club. It was stipulated that Oris Vick also knew of Spomer’s candidacy on July 27. In addition, Lansden and Spomer saw each other on several occasions during the political campaign.

Neither Vick nor Lansden objected to Spomer’s candidacy prior to the November 7, 1978, general election. On November 10, Lansden congratulated Spomer on his victory through an advertisement in the Cairo Evening Citizen. On November 20, 1978, Spomer resigned his position as Massac County State’s Attorney, and on November 21, 1978, this action was commenced in Sangamon County by plaintiffs, Vick and Lansden. The Sangamon County circuit court issued a permanent injunction against the State Board of Elections on January 3, 1979, enjoining it from certifying Spomer as the winner of the November 7 election.

The parties have raised numerous issues concerning the validity of Spomer’s nomination, but for reasons stated below it is unnecessary to discuss them. By failing to object to Spomer’s nomination prior to the general election, the plaintiffs are prevented from now raising the validity of Spomer’s nomination under the doctrine of laches.

Laches is applied where there is “such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity.” (Pyle v. Ferrell (1958), 12 Ill. 2d 547, 552.) (See Freymark v. Handke (1953), 415 Ill. 360, 366; Carlson v. Carlson (1951), 409 Ill. 167, 173.) Where a party is not “vigilant” or “slumber [s] on [his] rights” a court should not, in equity, allow favorable action. (Carlson v. Carlson (1951), 409 Ill. 167, 173; People ex rel. McIntyre v. Keene (1926), 322 Ill. 255, 258.) It is necessary to examine the facts of each case to determine the applicability of laches (McCartney v. McCartney (1956), 8 Ill. 2d 494, 500), and under the circumstances of this case it is clear that Vick and Lansden failed to diligently assert their rights to the defendants’ detriment.

Lansden and Vick knew of Spomer’s nomination in July; yet, neither of the plaintiffs challenged Spomer’s nomination until nearly four months had passed. It is vitally important that nomination objections be resolved at the earliest possible time. The procedure followed by the plaintiffs in objecting to Spomer’s candidacy after the election could have been pursued prior to the November election. Had this challenge been successful prior to the general election, Spomer could have avoided the campaign expenses and retained his Massac County position as State’s Attorney. Their failure to object worked a severe hardship on Spomer and misled the voting public. Lansden and Vick are guilty of laches in that they failed to assert their objections to the detriment of Spomer and to those who had promoted his candidacy and cast their votes for him.

If there were objections to the nomination, those objections should have been raised before the general election. As noted in People ex rel. Lewis v. Waite (1873), 70 Ill. 25, 27:

“[R] elator participated in the election he now seeks to have declared void, by voting thereat, and was himself an opposition candidate to respondent. Relator knew then, as well as now, that irregularities had intervened in the conduct of the election, and he ought not to be permitted to disturb the public welfare by having an election declared void, in which he participated with a full knowledge of all irregularities that existed. A sound public policy forbids it.”

The nomination objections were, in effect, dissolved by the general election. Cf. Welsh v. Shumway (1908), 232 Ill. 54; Schuler v. Hogan (1897), 168 Ill. 369; People ex rel. Elder v. Quilici (1941), 309 Ill. App. 466, 474.

In a challenge of recall petitions begun after the recall election, one judge observed:

“The petitioners had all of forty-five days which elapsed, between the filing of the petition and the day of election, to have brought a proceeding similar to the one they now bring. They did not do so. They slept upon their rights during all of that time, and now since the election, conducted at large expense, and since every elector has had an opportunity to vote upon the issues of the election, we think the plaintiffs are estopped at this late time to maintain the proceedings which should have been maintained if at all during the period of time between the filing of the petitions and the date of the election. (State ex rel. Laird v. Hall (1921), 48 N.D. 11, 26, 186 N.W. 284, 290 (Grace, G.J., specially concurring).)

Similarly, a challenge to the nomination of an Idaho candidate was dismissed when it was filed after the general election. As one judge succinctly noted: “[I] f the nomination of Scott by the committee, and placing his name on the Populist ticket, was contrary to law, the appellant should have made application to have the same corrected before the election.” Baker v. Scott (1895), 4 Idaho 596, 604, 43 P. 76, 78 (Sullivan, J., concurring).

In Schuler v. Hogan (1897), 168 Ill. 369, a Republican nomination was challenged after the general election. The court noted:

“A candidate should not be permitted to lie by, and point out such objections as the [objections] present after the election has been held. To permit such a course would be to defeat a fair expression of the will of the people. Where a candidate for public office makes no objection to the certificate of nomination of his opponent before the election, when the statute provides for the time and mode of presenting such objections, he should be regarded as having waived all objections, that may exist to the presence on the official ballot of any names of nominees not properly entitled to be there.” (Schuler v. Hogan (1897), 168 Ill. 369, 377.)

This court concluded in Welsh v. Shumway (1908), 232 Ill. 54, 59, “that the failure of a candidate to object to his opponent’s certificate of nomination in the manner provided by statute waives the objection ***.”

Both Vick and Lansden had actual and constructive notice of Spomer’s nomination before the general election; yet, neither of them objected to his candidacy. To now allow their objections would work to the detriment of Spomer and the public. Spomer would be severely prejudiced financially and otherwise. The will of the general public, as expressed fairly at the polls, would be nullified. The issue in this case involves only the validity of the nominating process by which Spomer became a candidate for the office. His qualification to hold that office is not involved. Under the circumstances of this case, we hold that having failed to object to the nomination procedure prior to the election, Vick and Lansden are guilty of laches and cannot be allowed at this late time to challenge Spomer’s candidacy.

Accordingly, the judgment of the Sangamon County circuit court is reversed and the injunction is dissolved.

Judgment reversed; injunction dissolved.

MR. CHIEF JUSTICE GOLDENHERSH took no part in the consideration or decision of this case.

       prior to oral argument of this cause in this court, but after the issuance of the permanent injunction by the circuit court of Sangamon County, plaintiff Oris P. Vick died. A motion suggesting his death was filed on March 19, 1979, by the remaining plaintiff-appellee, Robert Lansden, and Oris Vick was removed as a party from the suit, and no substitution was made. Prior to the adoption of this opinion, Lansden died. A motion by the attorney for Lansden suggesting his death was filed. An order was entered substituting Clinton Thurston as the plaintiff-appellee, prior to the filing of this opinion.


author:
MR. CHIEF JUSTICE GOLDENHERSH MR. JUSTICE UNDERWOOD,
      MR. JUSTICE CLARK, MR. JUSTICE MORAN,

text:
    (No. 50593.

      In re MORTON EFRAM FRIEDMAN, Attorney, Respondent.

      Opinion filed March 14, 1979.

    UNDERWOOD and RYAN, JJ., concurring in the decision.
    WARD, J., took no part.
    CLARK and MORAN, JJ., dissenting.
    John C. O’Malley, of Chicago, for the Administrator of the Attorney Registration and Disciplinary Commission.
    William J. Martin, Ltd., of Chicago, for respondent.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the decision of the court and the following opinion in which MR. JUSTICE KLUCZYNSKI joins:

The Review Board of the Attorney Registration and Disciplinary Commission recommended that respondent, Morton E. Friedman, licensed to practice law in Illinois on May 21, 1964, be censured. The two-count complaint filed by the Administrator of the attorney discipline system on May 12, 1976, charged that respondent, while serving as chief of the criminal division of the Cook County State’s Attorney’s office, was guilty of conduct tending to bring the legal profession into disrepute and violative of four Disciplinary Rules of the Code of Professional Responsibility: Disciplinary Rule 7 — 102(A)(6) (creation of false evidence), Disciplinary Rule 7 — 102(A)(4) (knowing use of false evidence), Disciplinary Rule 7 — 109(B) (secreting of a witness), and Disciplinary Rule 1 — 102(A)(4). The Hearing Board of the Attorney Registration and Disciplinary Commission found that respondent did not violate the Code of Professional Responsibility and recommended that the complaint be dismissed with prejudice. The Administrator filed exceptions with the Review Board. After consideration of briefs and oral argument, a report signed by three members of the Review Board was filed, recommending that respondent be censured. A second report, signed by two members of the Review Board, recommended that the report of the Hearing Board be affirmed. The three remaining members of the Review Board (one vacancy existed at the time) did not participate. The concurrence of five members of the Review Board is required for a decision (Supreme Court Rule 753(d) (58 Ill. 2d R. 753(d))) and the Board granted respondent’s motion for reconsideration. On February 28, 1978, the Review Board issued a second report and recommendation in which a five-member majority recommended that respondent be censured while three members, with a written dissent, voted that the complaint be dismissed with prejudice.

The facts are not in dispute and have been stipulated by the parties. The occurrences which gave rise to count I have previously been considered by this court in In re Howard (1977), 69 Ill. 2d 343. In March 1973 Charles Graber was arrested by Officer Jerry Maculitis and charged with driving while under the influence of alcohol. Respondent was informed that Officer Maculitis believed he had been solicited to receive a bribe from Graber’s attorney, Lee Howard. Respondent met with Officer Maculitis and directed him to follow Howard’s instructions even if those instructions included testifying falsely in favor of Graber. Howard told Maculitis that the defense would not be ready to proceed if the breathalyzer operator were present. Maculitis was instructed by respondent to arrange for the absence of the breathalyzer operator, who, however, on the day of the trial, appeared in court to testify. Following respondent’s instructions, Maculitis falsely advised the court that the breathalyzer operator was unavailable. The charges against Graber were dismissed. In a washroom adjacent to the courtroom Maculitis was given $50 by Howard, who was later indicted for bribery.

During the first recess of court after the disposition of the Graber case, an assistant State’s Attorney, acting upon the respondent’s instructions, advised the associate circuit judge of the circumstances surrounding the case.

The charge contained in count II of the Administrator’s complaint arose from facts which have also been before this court. (People v. Powell (1978), 72 Ill. 2d 50.) Juanita Guevara was arrested by Chicago police officer Jose Martinez and charged with the aggravated battery of Awilda Torres. In July 1973 respondent was told that Martinez had been approached by Guevara’s attorney, Paul Powell, and was solicited to receive a bribe. Respondent instructed Martinez to give the appearance of cooperating with Powell. After meeting with Powell, Martinez told respondent that Powell had offered to pay him if he would arrest Ms. Torres and use the threat of prosecution to persuade her to drop the charges. Respondent instructed Martinez to tell Powell that the complaining witness had been persuaded to drop the charges. Martinez was also told that if he were called as a witness at the preliminary hearing, he should advise the court that Torres did not wish to appear. Although Torres and her mother appeared in court ready to testify at the preliminary hearing, they were advised of the pending investigation concerning Powell’s conduct and escorted to the State’s Attorney’s office, where they remained until the preliminary hearing was concluded. The assistant State’s Attorney in charge moved that the case be stricken with leave to reinstate. Before ruling on the motion the court asked that Martinez be placed under oath in order to verify the reason for the request, and Martinez testified falsely that he had spoken to Torres and her mother and had been advised that they did not wish to prosecute. The court then granted the State’s motion to strike with leave to reinstate. After the preliminary hearing Martinez met Powell in the latter’s car and was paid $250. Powell was later indicted and convicted of bribery. Immediately following the preliminary hearing the court was advised of the reasons for Martinez’s testimony. The charges against Guevara were later reinstated.

This case presents the questions whether disciplinary action is merited and, if so, the nature of the sanction to be imposed when a prosecutor admittedly engages in conduct violative of the Code of Professional Responsibility for the purpose of developing evidence to be used in a subsequent prosecution. The parties have not cited nor has our research disclosed any analogous cases previously considered by either a court or disciplinary committee.

Analogizing to the court-tolerated deceit employed in narcotics investigations (United States v. Russell (1972), 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637; United States v. Sorrels (1932), 287 U.S. 435, 77 L. Ed. 413, 53 S. Ct. 210), respondent argues that “the courtroom is not immunized by the Code of Professional Responsibility from investigation methods otherwise lawful and ethical” and that perjury and the secreting of witnesses are necessary methods for the successful investigation and prosecution of corrupt attorneys, whose stealth makes less deceptive investigatory techniques ineffective. He contends, too, that motive and intent must be considered in judging the ethics of respondent’s conduct, and that respondent’s lofty motive negates any technical violation of the Code of Professional Responsibility. Any intent to subvert the judicial processes in the two cases, respondent argues, originated not with him, but with attorneys Howard and Powell.

The Administrator contends that deceit and deception, although permissible in drug investigations, may not be employed to mislead or deceive a court while hearing one matter in order to develop evidence to be used in another proceeding,- and that motive is not relevant to the question whether there has been professional misconduct and should be considered only in determining the appropriate sanction to be imposed.

ABA Standards, The Prosecution Function, section 1.1(d) (1971), states that “It is the duty of the prosecutor to know and be guided by the standards of professional conduct as defined in codes and canons of the legal profession, and in this report.” It provides, too, that it is “unprofessional conduct for a prosecutor knowingly to offer false evidence, whether by documents, tangible evidence, or the testimony of witnesses.” (ABA Standards, The Prosecution Function sec. 5.6(a) (1971).) Although this court has not formally approved the Code of Professional Responsibility adopted by the American Bar Association, it frequently serves as a guide for standards of professional conduct. (See In re Spencer (1977), 68 Ill. 2d 496; In re Taylor (1977), 66 Ill. 2d 567.) The complaint charged the violation of Disciplinary Rule 1 — 102(A)(4), which generally proscribes “conduct involving dishonesty, fraud, deceit, or misrepresentation,” and violations of Disciplinary Rule 7 — 102(A)(4), Disciplinary Rule 7 — 102(A)(6), and Disciplinary Rule 7 — 109(B), which provide:

“DR 7 — 102(A) In his representation of a client a lawyer shall not:
* * *
(4) Knowingly use perjured testimony or false evidence.
* * *
(6) Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false.”
“DR 7-109
* * *
(B) A lawyer shall not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making him unavailable as a witness therein.”

That respondent’s conduct has deviated from these rules is apparent; respondent himself admits that were it not for his motives he would be in violation. He argues that to impose discipline for his conduct would give more emphasis to the abstract concept of a courtroom’s sanctity than to the substances of an honest legal system. While respondent asserts that he is not arguing that the end justifies the means, we so construe his argument and find it unacceptable. The integrity of the courtroom is so vital to the health of our legal system that no violation of that integrity, no matter what its motivation, can be condoned or ignored. Although arising out of a different context, we find apposite the words of Mr. Justice Brandéis in Olmstead v. United States (1928), 277 U.S. 438, 485, 72 L. Ed. 944, 959-60, 48 S. Ct. 564, 575 (dissenting opinion):

“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.”

Respondent’s contention that no alternative methods were available to insure the successful prosecution of corrupt attorneys is also unpersuasive. As the above-quoted language indicates, even if no other ways existed to ferret out bribery, the respondent would still not be privileged to engage in unethical (and perhaps illegal) conduct. Moreover, in the present case alternatives were available to investigate and prosecute the suspected attorneys. They could, for example, have been charged with solicitation of perjury (Ill. Rev. Stat. 1977, ch. 38, pars. 8 — 1, 32 — 2) or attempted bribery (Ill. Rev. Stat. 1977, ch. 38, pars. 8 — 4, 33 — 1). Respondent maintains that as a practical matter convictions are virtually impossible to obtain unless the crime has been consummated and the money has been paid, .that even when these circumstances are present conviction is still very difficult. Such factors cannot, however, justify respondent’s conduct.

Because respondent acted without the guidance of precedent or settled opinion and because there is apparently considerable belief (as evidenced by the letters and affidavit supporting respondent) that he acted properly in conducting the investigations, we conclude that no sanction should be imposed. (See In re Luster (1957), 12 Ill. 2d 25.) It appears that respondent has otherwise served the public diligently and with integrity and acted in the present matter not out of self-interest, but from a sincere, if misguided, desire to bring corrupt attorneys to justice. In light of all these considerations, we hold that no discipline will be imposed.

Respondent discharged.

MR. JUSTICE UNDERWOOD,

concurring in the decision:

Of the 11 members of the hearing panel and Review Board who have expressed opinions on the stipulated facts before us, six (the entire hearing panel and three members of the Review Board) have considered that respondent’s conduct violated no ethical proscriptions. I agree, and while I do not join in the finding of impropriety contained in the Chief Justice’s opinion, I do join in discharging respondent, rather than dismissing the complaint, so that we may have the constitutionally required concurrence of four members in the action to be taken (Ill. Const. 1970, art. VI, sec. 3).

The Administrator’s case against respondent consisted solely of a statement of facts stipulated to by respondent. In contrast, respondent, after testifying fully and candidly that he accepted full responsibility for the conduct now alleged to be improper, introduced the expert testimony of James B. Zagel, the then chief of the criminal justice division in the office of the Attorney General of this State, and some 35 affidavits, statements and letters from both Federal and State judges and prosecutors, the Governor of Illinois, a law school dean and professors, criminal defense attorneys, and others. Many of these, in addition to attesting to respondent’s excellent character and impeccable integrity, viewed the undisputed facts as involving no professional impropriety. Notable among them is Monroe H. Freedman, formerly dean of, and currently professor at, Hofstra University Law School, a former faculty assistant at Harvard Law School and professor of law at George Washington University. Professor Freedman specializes in the field of lawyers’ ethics and has written extensively on the subject. His book Lawyers’ Ethics in an Adversary System has been characterized as the best in the field of legal ethics. Professor Freedman, who was serving as chairman of the Committee on Professional Responsibility of the Society of American Law Teachers, has also served or is serving in many other positions of responsibility in the professional ethics field. He indicated that “[m] otive is, of course, a primary consideration in making judgments regarding the ethical quality of conduct.” (M. Freedman, Lawyers’ Ethics in an Adversary System 83 (1975).) In his statement in this case, submitted in affidavit form, he indicates his opinion that the proper construction of the ABA-approved Code of Professional Responsibility Rules proscribing the knowing use of false evidence, deceit and misrepresentation restricts the application of those rules to situations in which the responsible attorney engages in such conduct with the intent not to reveal the fraud and deception to the affected person or tribunal. In Dean Freedman’s opinion, the complaint in this case should be dismissed for respondent was carrying out his express ethical obligation as a prosecutor to “improve the administration of criminal justice.” ABA Standards, The Prosecution Function sec. I. 4 (1971).

The former assistant chief counsel of the Senate Select Committee on Presidential Campaign Activities (the Senate Watergate Committee), after reviewing the stipulated facts in these charges, characterized respondent’s conduct as not only devoid of any basis for disciplinary action but as “in the highest traditions of law enforcement.”

Professor James B. Haddad of Northwestern University’s School of Law, a former first assistant in the Cook County State’s Attorney’s office during a part of the period respondent served as chief of the criminal division in that office, who is also experienced in the defense of criminal cases, submitted a statement detailing his observations regarding the handling of criminal cases in Cook County courts during respondent’s tenure as chief of the criminal division in the State’s Attorney’s office. Without extending this opinion by including the details related in that statement, it is apparent that the pernicious activities of some police officers and some court personnel were either eliminated or substantially reduced by procedural changes suggested by, or inaugurated by, respondent.

Based upon the evidence before it, a unanimous hearing panel found:

“1. Respondent did not entrap or attempt to entrap attorneys Powell and Howard. On the contrary, attorneys Powell and Howard initiated and were responsible for the brib ery sch em es.
2. The Respondent did not intend to deceive the court, the defendant in the pending cases, or the People, and did not intend to violate the Code of Professional Responsibility. The Respondent’s sole motive was to obtain evidence against two attorneys who had initiated attempts to bribe police officers.
3. A responsible attorney in the States Attorney’s office supervised the gathering of the evidence against attorneys Powell and Howard. No free rein was given to police officers or laymen to determine what testimony would be given in court, what witnesses would be' made unavailable, or what other steps would be taken in court in order to gather evidence against attorneys Howard and Powell.
4. There was no practical alternative method available to the States Attorney’s office to obtain the type of evidence (the payment of money) which experience had shown was indispensable in order to successfully prove the guilt of corrupt attorneys. A failure to prosecute and convict such attorneys will have a bad effect on the morale and willingness of police officers to expose future corrupt solicitations to the States Attorney’s office.
5. Respondent’s conduct did not deceive, prejudice or injure the Court, the People, or the defendants in the two cases. The respective courts were not deceived because of the prompt action taken by Respondent set forth in paragraph 6.
6. The Respondent made a prompt disclosure of the true facts to the court after the dismissal of each case, and thus allowed the judge to act promptly in the event the judge felt that the Respondent’s conduct had been contemptuous or that any other action should be taken under the circumstances.
7. No civil rights of any third person were violated by the procedures followed by the Respondent. For example, the Respondent refused to permit the complaining witness in the Guevara case to be falsely arrested in order to complete the attempted bribery.
8. Sophisticated and cautious corrupt attorneys carefully frame their solicitations in ambiguous language and not in the presence of other witnesses, so that a prosecution based simply on the testimony of the police officer against that of the attorney is virtually impossible as a practical matter. Such attorneys do not, as a rule, pay the bribe until they have accomplished the purpose for which they are giving the money.
We conclude that the Code of Professional Responsibility does not impose absolute liability, but requires an intent on the part of the attorney to do a wrongful act in order to constitute a violation.
We further conclude under the facts of this case, and particularly those facts set forth in paragraphs numbered 1-7 of the Findings of Fact, that the Respondent did not create false evidence, use perjured testimony or secret witnesses in violation of the Illinois Code of Professional Responsibility DR 7 — 102(A)(4) and (6) and DR 7 — 109(B). The conduct of the Respondent was not prejudicial to the administration of justice in violation of DR 1 —102(A)(4), and his conduct was not unethical, unprofessional, nor did it tend to bring the Bar into disrepute.”

In the amicus brief filed in his individual capacity by Thomas P. Sullivan, an able lawyer who formerly argued both criminal and civil cases in this court and now serves the Northern District of Illinois as United States District Attorney, Mr. Sullivan succinctly portrays the difficulty faced by law-enforcement personnel in cases like these. He states:

“From time to time, prosecutors receive what appear to be reliable allegations that defense attorneys in criminal cases are engaged in suborning perjury, or bribing witnesses, bailiffs, clerks, prosecutors or judges, or the like. The prosecutor to whom such allegations are made has a duty to investigate, and to prosecute those found to be corrupting the criminal process.
Usually, the hard evidence to prove these crimes is the payment of money by the defense lawyer to the witness, policeman, prosecutor, clerk, bailiff, or judge.
Usually, to obtain the hard evidence of payment, it is necessary to have one or more of the participants in the case pretend to abet the scheme. Payment usually occurs after the policeman, witness, prosecutor, clerk or judge has done whatever he is supposed to do; usually, the payment is made after the defendant is acquitted, the evidence is suppressed, the case is dismissed, or the like.
The Hearing Board’s ruling recognizes the practical problems faced by the prosecutor who wishes to investigate these kinds of allegations. Contrariwise, the ruling of the majority of the Review Board, if sustained by this Court, will seriously impair investigations in cases of this kind in Illinois. The unfortunate result may well be cessation of meaningful investigations of corrupt conduct by defense lawyers, witnesses, clerks, bailiffs, and judges in Illinois.
It is respectfully submitted that this Court should not hold an Illinois prosecutor guilty of unethical conduct when, in good faith, he carefully seeks evidence to ferret out and prosecute lawyers who are engaged in corrupting the criminal process. Surely Mr. Friedman should not be censured for doing that which he honestly believed to be a proper and ethical exercise of his sworn duty.”

In an attempt to answer, my colleagues suggest that respondent had alternatives available — the suspect lawyers could have been charged with solicitation of perjury or attempted bribery. The weakness of that naive answer lies in the demonstrated fact that a prosecution of either of those charges, based upon the testimony of a single, uncorroborated witness as to the ambiguous language in which such offers are customarily made, will rarely succeed against the lawyer’s vigorous denial of any criminal intent. (See In re Howard (1977), 69 Ill. 2d 343, where the lawyer was acquitted of bribery despite evidence of payment.)

The situation before us is analogous to that visualized by section 7 — 13 of the Criminal Code of 1961.

“Conduct which would otherwise be an offense is justifiable by reason of necessity if the accused was without blame in occasioning or developing the situation and reasonably believed such conduct was necessary to avoid a public or private injury greater than the injury which might reasonably result from his own conduct.” Ill. Rev. Stat. 1973, ch. 38, par. 7-13.

Certainly respondent was without blame in connection with the original bribe offers, and there is no doubt he believed his own conduct necessary to avoid a greater injury — the continued corruption of the judicial process by the two attorneys. That belief was, in my judgment, not only reasonable — it was correct. The fact is that no one, other than the dishonest lawyers, was injured by respondent’s conduct. The courts were promptly informed. One case was reinstated, and the other could have been. And respondent created a substantial and obviously needed deterrent to similar misconduct by other attorneys.

I should make clear that I abhor the thought of intentionally deceiving a judge — even temporarily — by the presentation of false testimony. But I abhor even more those members of my profession who seek to prostitute our courts. Since corrupt lawyers will not make payment of the bribe until that which they seek has been done, and payment is, in my judgment, a practical necessity to conviction of the lawyer, some form of misrepresentation to the judge is required if the evidence of payment is to be secured. What was done here, much as I dislike it, seems to me preferable to informing the judge in advance, thereby making him a participant, or immunizing the corrupt lawyer from investigation and prosecution which, I fear, will inevitably result if respondent’s conduct is held ethically impermissible.

In short, it is undisputed that respondent was a conscientious prosecutor dedicated to improving the administration of criminal justice. Both defendants and prosecutors benefited from his efforts as Professor Haddad’s statement illustrates. At no time did respondent intend to permanently deceive anyone, and the necessary, temporary deception practiced upon the court was corrected immediately after it had served its purpose. No authority is cited by my colleagues indicating that the proscriptions in the disciplinary rules of fraud, misrepresentation, deceit and the use of false evidence were intended to embrace the factual situation involved here, and I agree with Dean Freedman and the hearing panel that they were not so intended.

While I believe respondent’s conduct, motivated and circumscribed as it was, did not breach the disciplinary rules, for the reasons earlier noted I concur in respondent’s discharge.

MR. JUSTICE RYAN joins in this concurrence.

MR. JUSTICE WARD took no part in the consideration or decision of this case.

MR. JUSTICE CLARK,

dissenting:

The issue in this case is not, as respondent states in his brief, “Whether the courtroom is immunized by the Code of Professional Responsibility from the application of investigatory procedures that are otherwise lawful and ethical?” Nor is the issue, as respondent darkly hints, whether the majority of the Review Board, or for that matter, this court, is willing to give the State’s Attorney the latitude necessary to the successful apprehension and prosecution of corrupt attorneys. Rather, as I see it, a candid statement of the questions presented to this court would be as follows:

‘Whether an attorney is guilty of conduct which tends to defeat the administration of justice, where, as an assistant State’s Attorney, he learned of an apparent attempt by a defendant’s attorney to suborn the perjury of a police officer; instructed the officer to commit perjury if necessary to obtain evidence of payment from the attorney; whereupon, the officer falsely informed the court that a key prosecution witness was unavailable; the charges against the defendant were dropped; the attorney paid $50 to the officer, in a washroom adjacent to the courtroom, and another assistant State’s Attorney, pursuant to respondent’s instructions, informed the court. of the foregoing; and where, in a separate incident, respondent learned that an attorney for a defendant charged with aggravated battery had offered a bribe to a police officer, to facilitate the attorney’s strategy (which apparently involved charging the complaining witness with battery); and, through an assistant, directed the officer (A) to inform the attorney that the complaining witness had been persuaded to drop her charges against the defendant, and (B) falsely to inform the court that the complaining witness did not wish to appear and testify; whereupon, when the complaining witness did appear at the courthouse on the day of trial, respondent’s assistant concealed that witness from the court; the officer falsely testified under oath that the complaining witness and her mother did not wish to prosecute; the court granted the State’s motion to strike with leave to reinstate; defendant’s attorney gave the officer $250; respondent’s attorney advised the court of the foregoing circumstances; and the cause was reinstated.”

In my opinion, the answer is yes.

Lawyers who cause or permit lies to be told to judges are guilty of conduct which tends to defeat the administration of justice, regardless of the motive of the lawyer and regardless of the immediate impact of the lie. That the respondent’s sole apparent motive was to obtain evidence which he considered essential to the effective prosecution of corrupt attorneys therefore is not dispositive of the issues raised by this case. It is not within the province of any attorney, including one who represents the State, to determine whether the public interest requires the temporary deception of the court. That no prior case has-addressed the precise form of deception practiced here is hardly exculpatory: If anything, the absence of such authority indicates that prosecutors ordinarily do not consider it within their power to determine whether to deceive judges. Although several distinguished members of the bar have, on behalf of the respondent, sought to explain the necessity and propriety of respondent’s conduct, I seriously doubt whether any of them would have, if faced with the choice, acted as did he, particularly as regards his failure to obtain prior judicial sanction for his conduct. Respondent borders on frivolity in arguing that to have sought such prior sanction would have been improper. At the very least, therefore, I find the respondent guilty of incredibly poor ethical judgment and deserving of censure.

We may assume, for the sake of argument, that the respondent in good faith believed that, to persuade a judge or jury to convict an attorney accused of bribery, attempted bribery, or solicitation of perjury, it was necessary to obtain and present evidence of the payment of money by the attorney to the person allegedly bribed or solicited. (But see, e.g., United States v. Jacobs (2d Cir. 1970), 431 F.2d 754, cert. denied (1971), 402 U.S. 950, 29 L. Ed. 2d 120, 91 S. Ct. 1613, 1634 (attorney convicted without money changing hands). Cf. also, e.g., In re Goldstein (1952), 411 Ill. 360, 366 (difference in standard of proof between criminal and disciplinary proceedings); accord, e.g., Maryland State Bar Association, Inc. v. Frank (1974), 272 Md. 528, 325 A.2d 718 (attorney acquitted but disbarred).) We may further assume, for the sake of argument, that the attorneys in question would have been unwilling to make the payments in question until they saw and heard evidence of the perjury and/or suppression of witnesses they had bargained for.

The question remains, however, why did the respondent not inform the court of the foregoing until his agents had played out their strategy and had lied to the court? Respondent’s answer apparently is that he believed that to have informed the court beforehand would have been “improper” because (1) it would have, somehow, “involved” the court in a law-enforcement function, and (2) it would have constituted an “ex parte” communication in violation of Disciplinary Rule 7 — 110(B) of the Code of Professional Responsibility. I find that answer incredible. To have been informed before, rather than after, the fact of the falsity of testimony to be offered in his courtroom would not have “involved” the court in a law-enforcement function any more than a judge who reviews the adequacy of a search warrant or the voluntariness of a confession is “involved” in a law-enforcement function. (It is not unheard of, however, for law-enforcement personnel involved in the “competitive enterprise of ferreting out crime” (Johnson v. United States (1948), 333 U.S. 10, 14, 92 L. Ed. 436, 440, 68 S. Ct. 367, 369) to prefer to avoid the prior scrutiny of their actions that the warrant requirement mandates, although we do not know whether respondent’s true motive here was to avoid such prior scrutiny.) Especially here, however, where the rights of a criminal defendant (including the right to avoid unnecessary delay and prejudice to witnesses) also were at stake, it was the court’s prerogative to know of this little courtroom drama in advance and to pass upon its propriety. To have made such a determination before the fact would hardly have been anything but a judicial function, i.e., the review of executive decisions in an effort to protect the integrity of the criminal justice process, including the rights of the defendants. The respondent’s contention that he protected the rights of the defendants is an inadmissible misreading of the proper allocation of responsibilities between the executive and the judiciary. (Cf., e.g., United States v. Nixon (1974), 418 U.S. 683, 703-09, 41 L. Ed. 2d 1039, 1061-64, 94 S. Ct. 3090, 3105-08; United States v. United States District Court (1972), 407 U.S. 297, 314-18, 32 L. Ed. 2d 752, 764-67, 92 S. Ct. 2125, 2135-37; Nixon v. Sirica (D.C. Cir. 1973), 487 F.2d 700, 711-18.) It simply was not sufficient for the respondent to confront the court, after the fact, with the completed deception, stating in effect: “I did it. I’m proud of it. What are you going to do about it?” Respondent apparently had no doubt about the integrity of the trial judges he deceived; he has offered the statements of one of them in his defense. Even if he had such doubts, he was not without alternative fora, as I indicate below.

Respondent’s arguments regarding Illinois Code of Professional Responsibility Disciplinary Rule 7 — 110(B) (1970) also are without merit, in my opinion. Disciplinary Rule 7 — 110(B) provides as follows:

“(B) In an adversary proceeding, a lawyer shall not communicate, or cause another to communicate, as to the merits of the cause with a judge or an official before whom the proceeding is pending, except:
(1) In the course of official proceedings in the cause.
(2) In writing if he promptly delivers a copy of the writing to opposing counsel or to the adverse party if he is not represented by a lawyer.
(3) Orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer.
(4) As otherwise authorized by law.”

First, I am not persuaded that the communication in question even falls within the letter of the rule, let alone its intent, because I am not persuaded that advising the court of a proposed strategy for apprehending opposing counsel in the act of bribery is “as to the merits of the cause.” Second, paragraph (B)(4) of the rule expressly excepts ex parte communications “[a] s otherwise authorized by law.” Respondent’s statutory duties, which, he so emphatically claims, authorized him temporarily to deceive the court (despite the absence of any such express exemption in Disciplinary Rules 7 — 102(A) and 7 — 109), would have provided substantial authority for the communication in question. It is just inconceivable to me that respondent could in good faith have believed that he could not, consistent with the intent of the Code, tell the court the truth, but he could cause the court to be told a lie. The purpose of Disciplinary Rule 7 — 110(B) is to prevent the “effect or *** the appearance of granting undue advantage to one party” (ABA Code of Professional Responsibility, Ethical Consideration 7 — 35 (1970)). Since respondent apparently concedes the need to inform the court of its deception after the fact, it is hard to see how prior warning would have given even the appearance of undue advantage to the State. If anything, it might have helped to preserve the rights of the defendant. It is not inconceivable that the court, thus warned, would have secretly appointed special counsel to represent the defendant’s interests in this matter in an emergency, in camera hearing. The actions of the respondent effectively foreclosed this possibility too, however.

Finally, even if the respondent had in good faith believed that, for some as yet unarticulated reason, he could not talk to the trial judge, he should not have taken it upon himself to decide whether the temporary deception of the trial judge was appropriate. He should have had the common sense and ethical circumspection to have brought his dilemma to the attention of the presiding judge of the criminal division, or the chief judge of the circuit court, or if the foregoing were for some reason inappropriate, to this court itself, which has supervisory powers over the circuit courts. He did not do so; he thus usurped the role of the courts through deceiving a trial judge, albeit temporarily, and his conduct merits censure.

MR. JUSTICE MORAN,

also dissenting:

I agree with the rationale of the lead opinion, dissent from its decision that no discipline should be imposed, and am’ diametrically opposed to the totality of the joint special concurrence.

Respondent’s conduct was, by his own admission, a violation of the disciplinary rules cited. To excuse his conduct because a conviction for bribery would otherwise be impossible would make the court not only a victim of respondent’s duplicity but also an advocate of the philosophy that a conviction by any means is the ultimate goal of our system of justice.

That respondent might be excused because his motives were pure is an untenable defense, particularly when intent is not an element of the charge here raised against him.

Without dwelling on my many differences with the concurring decision, it will suffice to say that, in my opinion, it not only condones respondent’s conduct but also lauds him for it and encourages it in others. Under the more palatable term “necessary,” it avoids stating its assention to the cliche that the end justifies the means. The concurrence finds a cure in respondent’s admission after the fact, yet confession does not eradicate the commission. In my view, the concurrence sets an intolerably dangerous precedent.

While we must avoid the temptation of imposing idealistic but unrealistically high expectations on members of the profession merely because of that membership, we cannot content ourselves to expect less of the practitioner than that he be subject to the rules of conduct imposed on all citizens. Even without the criteria of the disciplinary rules, the public, the court and the profession have the right, minimally, to expect a valid, common-sense determination by the practitioner to discern right from wrong, and one need not be trained in the law to know that it is flatly unacceptable to prevaricate to or mislead the court or to be instrumental in encouraging others to do so. The lead opinion finds ameliorating the fact that respondent acted without the guidance of precedent or settled opinion. I am not so persuaded. The canopy of ethics must cover more than black-letter law or we are constrained to excuse all but those infractions so recorded, although it would be impossible to conceive of, much less enumerate, explicitly, every infraction possible.

Respondent’s conduct is of the genre which has undermined the public’s confidence in the profession, in the courts and, ultimately, in the law. If the public finds it intolerable that a member of the profession can operate without the constraints of law, it can be no less intolerable to the court affronted by the conduct. The court must remain the ultimate forum of truth. Respondent’s conduct has disregarded that essential, and, in so critical a consideration, I do not believe that the court can condemn the act but excuse the actor. Under the mitigating circumstances of this case, I feel respondent should be censured.

         E.g., at page 31 of respondent’s brief we find the following hyperbole: “The intimation of the Review Board is that Respondent should have done nothing once he learned of the respective schemes of Powell and Howard, or that he should have proceeded with evidence which he knew from past experience would be insufficient to constitute proof of bribery beyond a reasonable doubt. In no other investigative activity would this type of approach be urged upon the prosecutor. This is the approach to corruption on the part of lawyers that suggests that they are being treated more favorably and pursued less diligently than others suspected of criminal activity.” (Footnotes omitted.)