specially concurring:
I agree with the court’s opinion, but because the record affirmatively establishes:
(1) the. learned trial judge refused to comply with the mandate of this court;
(2) the learned trial judge abandoned his duties as an impartial jurist and became an ardent advocate for the prosecution, in violation of constitutional due process; and
(3) the Franks evidentiary hearing defendant received was no hearing at all and it was not conducted to reach a fair determination of defendant’s challenge to the search warrant, as the opinion concludes,
the cause should be remanded with directions that it be reassigned for any further proceedings to a judge other than Judge Thomas J. Maloney, who has twice erroneously ruled on the Franks motion, as was done in People v. Gurga (1988), 176 Ill. App. 3d 82 (No. 2).
In People v. Gurga (1986), 150 Ill. App. 3d 158 (No. 1), this court held that the trial court’s judgment of “guilty” was contrary to the manifest weight of the evidence, and remanded the cause for entry of a judgment of “guilty but mentally ill” and for resentencing based on that judgment. Expressly holding in Gurga No. 2 that “the mandate of this court must be followed by the trial court,” and that because on remand “[t]he trial court commented at length regarding the remand from this court,” and further because “the comments of the trial court [made] it clear that the court failed to comply with the mandate of this court,” this court again remanded the cause for another sentencing hearing with “directions] that the hearing be conducted by a different judge.” 176 Ill. App. 3d at 83-84.
The trial judge in Gurga Nos. 1 and 2 was the Honorable Thomas J. Maloney, and he is the same trial judge in the instant case, in which on remand, as in Gurga, he likewise disparagingly commented at length regarding the remand from this court. His comments, hereinafter set forth, also make it clear that he failed to comply with the mandate of this court in the instant case, for which reason this court too, as in Gurga, should “direct that the [Franks evidentiary] hearing be conducted by a different judge.” 176 Ill. App. 3d at 84.
It is clear from the records on the two appeals that the trial judge in the case at bar did not perform and pursue that fair and impartial judicial role that due process demands. The supreme court has repeatedly held that due process requires recusal where hearing and deciding the case “would offer a possible temptation to the average *** judge to *** lead him not to hold the balance nice, clear and true.” (Tumey v. Ohio (1927), 273 U.S. 510, 532, 71 L. Ed. 749, 758, 47 S. Ct. 437, 444, quoted in Aetna Life Insurance Co. v. Lavoie (1986), 475 U.S. 813, 825, 89 L. Ed. 2d 823, 835, 106 S. Ct. 1580, 1587, and Ward v. Village of Monroeville (1972), 409 U.S. 57, 60, 34 L. Ed. 2d 267, 271, 93 S. Ct. 80, 83.) Due process demands that a judge recuse himself from hearing a case not only where he is actually prejudiced, but also where his hearing the case would create even the appearance of partiality. The supreme court has held:
“[The due process clause] ‘may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties.’ But to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ” (Emphasis added.) Aetna Life Insurance Co., 475 U.S. at 825, 89 L. Ed. 2d at 835, 106 S. Ct. at 1587, quoting In re Murchison (1955), 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625.
The trial judge in the case at bar made no attempt to weigh the scales of justice equally between the contending parties, for which reason justice does not remotely satisfy the appearance of justice in the case at bar. Accordingly, in my judgment, the learned trial judge, the Honorable Thomas J. Maloney, should not further preside in the instant case and the cause should not be remanded for further proceedings before him.
In our initial opinion, we reversed the defendant’s syndicated gambling conviction and sentence and remanded the cause “with directions to grant the defendant an evidentiary [Franks] hearing to challenge Officer Chambers’ affidavit.” (Zymantas, 147 Ill. App. 3d at 435.) It is clear that our opinion required more than the mere “production of the officer for whatever interrogation might be conducted. It doesn’t go beyond that ***,” as the trial judge mistakenly ruled. The trial judge concluded that our opinion and mandate simply required that “the officer will be produced and you [defense attorney] will be able to examine him and that will be it.” This conclusion was patently erroneous, and no rational or logical or reasonable reading of our opinion could possibly lead to such an absurd, restricted interpretation. The learned trial judge did not refer to or cite a single word or phrase in the opinion upon which he predicated such a nonsensical, narrow and limited construction. The trial judge’s restrained interpretation of the opinion was illogical, arbitrary and capricious.
The defendant’s motion to quash the search warrant and to produce the informant, and the defendant’s supporting affidavit, averred 10 assertions of false statements knowingly or intentionally made, or made with a reckless disregard for the truth, in Officer Chambers’ complaint for the search warrant, namely:
“The undisclosed informer does not, in fact, exist.
(3) That on his sworn Complaint for Search Warrant, Officer
Chambers made the following false statements knowingly and intentionally, or with reckless disregard for the truth:
(a) That an undisclosed informant was used in this investigation;
(b) That on 14 April 82, Officer Chambers observed this fictitious informer dial the telephone number 274-4967;
(c) That Officer Chambers heard the fictitious telephone conversation;
(d) That Officer Chambers heard the fictitious informer give a code number and that a male voice on the telephone said ‘go ahead’;
(e) That Officer Chambers saw and heard the fictitious informer place a bet on the Bulls;
(f) That Officer Chambers was with the fictitious informer on the 15th of April where the same aforementioned procedure was used and the informer placed a bet on Detroit;
(g) That Officer Chambers checked with Illinois Bell Telephone and then determined that the telephone was listed to August Zymantas;
(h) That Officer Chambers was informed by the fictitious [informer] that he had been placing basketball wagers with a male known as Augie via Illinois Bell Telephone number 274-4967;
(i) That the fictitious informer had given information to Officer Chambers.”
During the original trial court proceedings, the defendant in vain repeatedly requested a Franks evidentiary hearing on these assertions. His requests were repeatedly denied by the trial judge, for which reason we reversed the defendant’s conviction and remanded for a Franks evidentiary hearing. It would appear to be ludicrous for the learned trial judge to construe our opinion as restricting such an evidentiary hearing on the defendant’s aforesaid assertions to only the defendant’s examination of Officer Chambers, whose very integrity, veracity and conduct the defendant was challenging. Initially, the prosecutor did not so limitedly interpret our opinion and remand, for when the cause first came before thé trial judge after remand, for the Franks evidentiary hearing, the prosecutor stated:
“The People are ready to proceed today. I have the officer here and somebody from Illinois Bell coming in this afternoon.” (Emphasis added.)
The Illinois Bell Telephone records revealed that telephone number 274-4967 was not registered to the defendant Augusta Zymantas, contrary to Officer Chambers’ affidavit that he “checked with Illinois Bell Telephone Security, and found that Illinois Bell Telephone No. 274-4967 is registered] to August Zymantas.” Presumably, the prosecutor had “somebody from Illinois Bell coming in this afternoon” to testify on this disputed issue at the Franks evidentiary hearing.
The defendant moved for the prosecutor to produce the informant for defense counsel’s examination at the Franks evidentiary hearing. The following colloquy occurred:
“THE COURT: *** [T]his Appellate Court decision has nothing to do with an informant.
MR. SCHULTZ [Defense Counsel]: However, Your Honor, the Appellate Court decision was a remand for a hearing on the Motion and the motion in it’s [sic\ entirety and that includes the points I have recited in my motion and among those some eight or nine allegations is the allegation that there is no informant in this case.
Any kind of a meaningful hearing to comport with due process and comply with Sixth Amendment rights to confront and cross, I believe, requires that the informant be made available to cross examine.
If there is only the officer’s integrity who is being questioned to testify there was or was not an informant it is hardly a meaningful hearing.
* * *
As this is a Motion to Suppress, I think the issue is quite clear that the situation before the Court would obligate the State to produce that informant.
THE COURT: *** [In] every courtroom in this building there are petitions of this kind filed where the Defendant-Petitioner says there was no informant and it is this view when a Petitioner/Defendant says that, the informant should be produced, is that right?
MR. SCHULTZ: That’s correct. When that allegation is made, that the informant does not exist. But what distinguishes this situation is *** in this case, there is one established falsehood by the officer in this affidavit. Namely, the fact that he took a telephone number and he contacted Illinois Bell Security and obtained information from them. There has already been a showing that that is a falsehood.
THE COURT: Let me tell you something. I discussed this case with twelve or thirteen judges of the trial courts. Every one of them considers it to be an absurdity, as I consider it to be an absurdity.
The phone number is registered to Zymantas. The correct number, the correct address and the correct name, and as I pointed out in deciding the case it was immaterial whether a person subscribed to a telephone number through himself or his wife. He was conceding it was his address, it was his telephone number and Judge Pinchara went on for pages and pages about the Bill of Rights, the Constitution and the Magna Carta and God knows what else, because the Defendant had a telephone number in his wife’s name and every Judge thought it was an absurdity.
MR. SCHULTZ: There are several Maloneys in the phone book. I hope this Court or any court — .
THE COURT: *** [I] do not wish to argue the merits of the decision. I have told you my opinion of it and the opinion of the courts on this motion.
You see there is a very serious gravity, serious reason recognized in the law to protect informants. They are people who need it and it cannot be overridden by bland off-hand assertion in these petitions that there was no informant.” (Emphasis added.)
First, the learned trial judge’s ostrichism was clearly unwarranted. Even after our opinion specifically spelled it out, the trial judge refused to accept, or ostensibly did not understand, that the issue on the Franks evidentiary hearing was whether Officer Chambers told a lie when he swore that he had checked with Illinois Bell Telephone Security and found that telephone number 274-4967 was registered to the defendant Augusta Zymantas, based upon the official Illinois Bell Telephone receipts for that telephone number, produced by the defendant, which established that the telephone number was not registered in the defendant’s name.
Second, the Franks evidentiary hearing issue, or the factual veracity of the complaint for the search warrant issue, was not “whether a person subscribed to a telephone number through himself or his wife,” as the trial judge, both before and after our opinion, repeatedly mistakenly insisted. Again, the issue was the veracity of the officer’s sworn assertion that he learned that the telephone number was registered in the name of the defendant Augusta Zymantas.
Third, regardless to whether, or the extent to which the trial judge and 12 or 13 of his colleagues considered this court’s decision an absurdity, the trial judge was constitutionally bound to uphold it, to follow it and to be fair in so doing. He did neither! In spite of his assessment that this court’s decision was absurd, the learned trial judge was constitutionally prohibited from distorting or convoluting it. He did both.
Fourth, it was no “bland off-hand assertion that there was no informant” in the case at bar; and fifth, there was no valid basis for concealing the informer’s identity, and nondisclosure of the informer’s identity was clearly overridden by the facts, circumstances and issues in the case at bar.
Officer Chambers swore that the informant told him on April 14, 1982, that he had placed basketball bets with Augie over telephone number 274-4967, and that over that telephone number on April 14, 1982, he overheard the informant give “a code number” and place bets of “$200.00 on the Bulls and $100.00 on the over,” and on April 15, 1982, following the same procedure, he overheard the informant bet “$200.00 on Detroit.”
Certainly Augie would have to know the identity of the informant who placed the bets with him in order for Augie to collect from the informant if the informant lost the bets, and in order for Augie to pay the informant if the informant won. So, unlike in narcotics cases when narcotics dealers promiscuously sell drugs to numerous unknown and known buyers, and the informant-purchaser is therefore not necessarily known by the seller, a gambling bookie must know the identity of persons from whom he telephonically accepted bets in order to collect and pay. Thus there was no overriding purpose of nondisclosure or nonproduction of the informant in the case at bar, if in fact there was an informant. The defendant knew or could readily determine the identity of the informant, if in fact there was an informant, and if the defendant in fact accepted the wagers from him.
After and inasmuch as the trial judge denied the defense attorney’s request for production of the informant, the defense attorney then and. therefore asked: “Your Honor, may I inquire what would be the hearing that has been ordered to be conducted ***?” The trial judge responded:
“Don’t ask me. You’re the defense. You want the hearing and the appellate court seems to think you should have it so you are going to have it.” (Emphasis added.)
Although the prosecutor subsequently shared the trial judge’s interpretation that our opinion and mandate did not require him to produce the informant, nevertheless, the prosecutor did not at any time voice any objection to doing so. But the prosecutor did not have to, if any objections he had. The trial judge sua sponte expoundéd the objections for him.
The same trial court, sua sponte objections occurred on the defense attorney’s motion for discovery. At no time did the prosecutor object to the defendant’s discovery motion. Again, it was unnecessary for the prosecutor to do so. The trial judge did the objecting. Anew, the trial judge sua sponte staunchly articulated the objections. The defense attorney’s presentation of his discovery motion, the complete colloquy and the trial court’s ruling thereon follow:
“MR. SCHULTZ: Well, Your Honor, among the issues that were raised in the Defendant’s Motion is the issue of the officer’s conduct with respect to obtaining the information concerning the Defendant’s identity and he has alleged under oath that he contacted Illinois Bell Security.
My investigation, which of course is not in evidence, casts considerable doubt on what the officer did or did not do. In order for me to properly complete my investigation and question the officer under oath I am asking that the State be ordered to produce, in their capacity as facilitator of transmissions of information from the police department to the defense, I am asking them to produce the letter which I was informed by Illinois Bell Security must be filed on each occasion when an unpublished number is sought. I think, published or unpublished numbers, so I am requesting that be produced because I question whether that exists at all, because I question whether the officer made any contact with Illinois Bell Security.
I have also asked in there, matters that are allowed me, to test that assertion by police officers. Namely, the letter itself, each person he spoke to at Illinois Bell Security and I would also like to have the name and address of those individuals so that I can subpoena them into court. Interview them and subpoena them into court to testify in this hearing and I would also ask, in order to aid my investigation, copies of any general order of special regulation by the police department which governs obtaining information about unpublished telephone numbers, all of which are highly relevant to the material issue of the officer’s conduct and whether his conduct was — his affirmations are merely false or legally false, both of which are standards the Court will have to be ruling on.
THE COURT: I am afraid all your motion appears to do, to the Court, is a flight of fancy and I see no basis at all for such authorization. You are engaged in a flight of fancy. A thrashing about desperately trying to find something on the belief there must be something wrong here.
* * *
*** [I] see no authorization for this delving into the telephone company’s methods and the police department’s method. Authorization, at most, is an examination of the affiant and that’s what this hearing to [sic] going to be. I am not going to bring in the police department or the telephone company.
You see, in the first place, as I pointed out not too long ago, they sent it to the Appellate Court and they didn’t grasp it.
* * *
And a Judge in the Appellate Court here said in one of those comments, what the Court calls hearsay warrants, in other words, they never heard the term because most of them have never been in court or as a lawyer ***. The informant always should be produced and even if courts have to operate around the clock and informants have to be brought in great secrecy, that’s what ought to be done and this only opens up, as they call it, a can of worms. Pandora’s box. Unending trouble ***. That’s no good and so it’s like a merry-go-round and you never know where to stop. It was a bad idea in the first place and it came from the Appellate Division of the Court and the problem then, now and will always be until it is resolved, is that people who are in the Appellate Division should proceed from the Trial Division and the Trial Division should proceed or should be established only from courtroom lawyers.
* * *
*** [T]he criteria which should be established before one should even be considered for the bench, which in the Court’s view, as I have stated a thousand times, should be a man of fifteen years day in and day out with courtroom experience, and then can minimally be considered and then after a term or so one might proceed to the Appellate Division and then there might be some sense out of all of this ***.
* * *
*** [T]hese young judges, people who got to be judges when they are twenty-eight or thirty and some of them are, and so the younger people who have no problems sleeping and there would be no problem having a judge here all night. Two shifts in a county of seven million people. No problem at all and it wouldn’t require extraordinary security. It would be simple security to bring these informants to the courtroom or chambers, day or night, and all these problems and all of this time and all of these decisions could be junked, as they all should be. *** [B]ut we have to confine ourselves to the limitation of these decisions, so your second, motion [for discovery] is denied.” (Emphasis added.)
Regarding the trial judge’s preceding diatribe, the defense attorney's discovery motion was legally and factually well founded and the expressed grounds therefor were accurately articulated. The motion was not “a flight of fancy” or “a thrashing about desperately trying to find something,” as the trial judge baselessly concluded. I additionally note that the trial judge’s foregoing personal denigrating assessments of the justices and the decisions of the appellate court, and his preferred method of selecting and electing the judiciary, were invalid considerations in determining and in denying the defense attorney’s discovery motion.
Having been admonished by the trial judge that “[a]ll that this opinion *** of the Appellate Court requires is the production of the officer for whatever interrogation might be conducted,” and that “the officer will be produced and you will be able to examine him and that will be it,” and the trial judge having denied defense counsel’s discovery motion regarding the telephone documents, and defense counsel’s motion for production of the informant, when the defendant’s motion for an evidentiary hearing to challenge Officer Chambers’ affidavit, the Franks hearing came on to be heard, the defense attorney apprised the trial judge:
“This matter is set for a hearing on our motion to quash and suppress evidence in accordance with the Franks decision. And in view of the court’s ruling on our motion to disclose informant and our motion for discovery *** we are ready for a hearing on our motion this morning.”
Thereupon, the defense attorney was put to the dubious task of calling Officer Chambers as a witness and establishing by an exclusive examination of him that he lied when he stated in his affidavit that he checked with the telephone company and found that telephone number 274-4967 was registered in Augusta Zymantas’ name.
Unsurprisingly, Officer Chambers testified that he did not remember the name of the person with whom he spoke at Illinois Bell Security; that he did not submit a letter or any other document to Illinois Bell Telephone requesting information about an unpublished telephone number or the identity of the person to whom that phone number was registered, or that telephone location was obtained by him from Illinois Bell Security on April 15; the number was a nonpublished number which Illinois Bell Security told him was registered to Augusta Zymantas, that he did not receive any written confirmation of this information from Illinois Bell Security; Illinois Bell Security did not tell him that that telephone number was registered to Nancy Zymantas.
Having been manacled in an evidentiary straightjacket by the trial judge’s aforesaid erroneous, restricted interpretation of our opinion and discovery rulings, the defense attorney endeavored to extricate the evidence from such a binding stranglehold by calling the defendant Augusta Zymantas as a witness on the hearing. Zymantas testified that he was not the subscriber to telephone number 274-4967, and that there was no telephone registered or subscribed to in his name. The defendant identified a February and an April 1982 Illinois Bell Telephone bill to Nancy Zymantas, to which the prosecutor objected, stating, “Objection, Your Honor, I don’t believe — this is a hearsay document this person is testifying to. He’s not the proper party to be testifying.” Whatever merit the prosecutor’s objection may have had, it became unnecessary for him to further expound on it because, here again, the trial judge became an advocate for the prosecution and zealously pursued the objection for him. The best description of the trial judge’s advocacy role is the actual colloquy, exclusively between the trial judge and defense counsel, consisting of no less than seven record pages, immediately following the prosecutor’s objection, and which is completely set forth hereafter in appendix No. 1.
Thus, after this extensive dialogue between the trial judge and the defense attorney on the prosecutor’s objection, after the defense attorney’s request for a continuance to bring in the Illinois Bell Telephone Company’s keeper of records to properly prove up the phone company bills, and after the prosecutor’s belated admission that the two telephone bills were valid and authentic, the trial judge then admitted, examined and took note that they were Illinois Bell Telephone bills dated February 22, 1982, and April 22, 1982, for telephone number 274-4967, in the name of Nancy Zymantas at 6157½ North Leavitt Street, Chicago, Illinois.
Defendant Augusta Zymantas thereafter additionally testified that on April 14 or 15, 1982, he did not accept any wagers on any basketball game, or any other wager, over any telephone at his residence at 6157½ North Leavitt, and that on those dates from 7 a.m. to 3:30 p.m., he was not at home, but rather, he was at work on his job at S & C Electric at 6601 North Ridge. Zymantas identified defendant’s exhibit No. 2 as a document from and signed by S & C Electric personnel administrator, James A. Jones, Jr., which stated that the defendant worked on April 14 and 15, 1982, from 7 a.m. to 3:30 p.m. The trial judge admitted the document as an offer of proof. (Pursuant to the defense attorney’s request, the trial judge took note that the search warrant reflected that it was endorsed and issued on April 15, 1982, at 3:45 p.m.)
Defendant Zymantas further testified that telephone number 274-4967 was a nonpublished telephone number, registered in his wife’s name, Nancy Zymantas, at their 6157½ North Leavitt residence.
The prosecutor did not call a single witness. At the conclusion of defendant Zymantas’ testimony, defense counsel moved and stated to the trial judge:
“[A]t this time on the basis of the United States Supreme Court decision in McCray versus the State of Illinois I ask that this court now order that the State produce the informant about which there has been testimony. *** The evidence of the defendant which shows that he did not receive a bet and, therefore, did not receive any phone calls from any informant on that day has not been impeached in any way. There has been a clear and convincing showing that there was no informant, that the things that were purportedly done by the informant on that day were not done, and on that basis I believe that the defendant has satisfied his burden as set forth in McCray versus Illinois to overcome the government’s privilege to maintain the confidentiality of that informant, and I would ask that the court order that that informant be so produced.” (Emphasis added.)
The prosecutor initially (1) inaptly responded, then immediately thereafter he (2) aptly responded, following which he finally (3) inaptly responded, as follows:
“Your Honor, in response, [1.] it doesn’t matter where the defendant was on April 14th or 15th [2.] What’s in question here is the veracity of the police officer when he made out the warrant.
Nowhere in this warrant does the police officer say that he spoke to Mr. Zymantas when they called. The police officer indicates they called a phone number, a male voice stated — after giving a code number a male voice stated go ahead, then bets were placed.
Based on this information, the officer knowing that the informant gave him the name Augie, the officer checked the listing on the telephone number and it was listed, and he testified, listed to August Zymantas at 6157V2 North Leavitt.
This was more than ample probable cause to believe that there was engaging in bets going on at that location and by August Zymantas. Nowhere in this warrant does it say they spoke to August Zymantas, so that doesn’t matter.” (Emphasis added.)
The defense attorney correctly retorted:
“The issue before this court is not the issue of whether the warrant as filed states probable cause. The issue before this court is whether the facts that were alleged in the complaint were — those facts which are false were included either intentionally or with reckless disregard.
I submit there has been no evidence to impeach the evidence presented both by document and by live testimony of the defendant that those matters were included recklessly or with an intent to misrepresent.” (Emphasis added.)
The prosecutor only peripherally addressed the falsehood-intentional-reckless disregard for the truth issue, and the trial judge failed to properly resolve it.
It is indeed noteworthy that at this late stage in the proceedings there occurred a significant prosecutorial transition, which was immediately advocated and adopted by the trial judge. Apparently, because the defendant had convincingly established that he was not home, but rather was at his place of employment at S & C Electric Company when the wagers were allegedly received over his home telephone, corroborated by his employer’s work records, the prosecutor hastily retreated from his original position. He now conversely urged, for the very first time, in response to the defense attorney, that “[njowhere in this warrant does it say they [Officer Chambers and the informant] spoke to August Zymantas.” The trial judge promptly pursued and adopted this unpredicted and unpredictable prosecutorial transformation:
“MR. SCHULTZ [Defense Attorney]: *** [At] this point the only evidence before this court is that Mr. Zymantas was not present at a time when he is purported to have received bets — .
THE COURT: No, it isn’t. He’s not purported to have received bets. The person who answered to the name of Augie, a male, is purported to have received bets. *** He was at work. *** As far as he knows. He wasn’t there.
* * *
MR. SCHULTZ: [Mr.] Zymantas testified this afternoon, unrebutted, that he was not at home to take the telephone call.
THE COURT: Nobody said that he was.
MR. SCHULTZ: *** [T]he officer’s affidavit states that a male who identified himself as Augie.
MR. GROARK [assistant State’s Attorney]: Objection. The
officer’s affidavit does not say the phone was answered by a male who identified himself as Augie. That is incorrect.
THE COURT: I don’t believe that’s correct.
MR. SCHULTZ: Doesn’t it say — .
THE COURT: I didn’t think that it did.
MR. SCHULTZ: In the first page of the affidavit the affiant states that informant then stated he has been placing basketball wagers with a male known as Augie via this telephone number.
THE COURT: Yes. It doesn’t say that’s what happened that day.” (Emphasis added.)
That the defendant was not at home and was not the person to whom Officer Chambers telephonically talked and with whom the informant telephonically placed the wagers on April 14 and 15, accepted by the trial judge at the conclusion of the evidence on the Franks hearing in upholding the validity of the warrant, is the diametrically opposite position taken by the trial judge when he initially denied the defendant a Franks hearing and upheld the warrant’s validity. In the original trial court proceedings, and we noted in our previous opinion, People v. Zymantas (1986), 147 Ill. App. 3d 420, 422, the defense attorney argued that the complaint for the search warrant and the search warrant itself did not particularly describe the person to be searched, and that the “Augie” referred to in the complaint for the search warrant was not otherwise identified. The same trial judge then responded:
“THE COURT: But it was rationale to assume that the ' Augie who spoke on the telephone is the August Zymantas to whom the telephone is registered.
MR. CARROLL [Defense Attorney]: So the court would rely in fact that the phone is registered — .
THE COURT: To August Zymantas, who is called by the caller, ‘Augie.’ ” (Emphasis added.)
These shifting, inconsistent positions by the trial judge in upholding the validity of the warrant, before and after the Franks hearing, are totally unfair and unacceptable.
At the conclusion of the evidence, there was also extensive colloquy, exclusively between the defense attorney and the trial judge, on the tactical and evidentiary curtailment of the defense attorney by the trial judge’s adverse discovery rulings, which are hereafter set forth in appendix No. 2.
If there remained any doubt of the deficiency and the incompleteness of the Franks hearing, such doubt is steadfastly resolved by the following colloquy, in which the trial judge illegally, improperly and illogically engaged in and resorted to distorted, convoluted, unwarranted and evidentially baseless inferences, innuendos, assumptions and suppositions, contrary to the undisputed and uncontradicted evidence before him, in order to uphold the warrant’s validity:
“MR. SCHULTZ [Defense Attorney]: There has been no evidence to overcome the unrefuted, unrebutted evidence that the officer was unable to obtain from Illinois Bell that the phone was registered to August Zymantas. The only proof that’s been adduced was that the phone was not registered to August Zymantas. That, I submit, is therefore a false information included in the affidavit — .
THE COURT: No. No. That isn’t proof at all. I assume when the officer got that information from Illinois Bell Security that whoever he spoke to there looked at some record. The defendant’s wife does not work, as he testified.
Ordinarily telephones are not — people who are unemployed are not permitted, are not granted the use of telephones, so we may properly infer that his name, he, the employed person in the household, appeared someplace on the consulted records and that very possibly whoever gave the officer that information gave him that name, maybe in error. *** The officer said that’s the name that he was given.
* * *
I mean it’s just common sense that a telephone subscriber would be an employed person. It’s common practice, very common, that males, for some reason or other, different reasons, many different reasons, have their telephone listed in their wives’ names, sometimes their mother’s name. It’s a common practice for a variety of reasons, but the telephone subscriber is ordinarily an employed person.
So very likely the defendant’s name appeared someplace on this subscription application, the information sheet, which we assume the security people at Bell referred to and so it’s conceivable that they gave the wrong name.
MR. SCHULTZ: *** [I] think that is an impermissible inference from the evidence that’s before the court, your Honor. ***
THE COURT: But we have a fact here in contradiction. The officer said he was given one name. Your billing sheet show[s] another name. We don’t have the entire conversation between the officer and the person that he spoke to five years ago. He doesn’t remember the whole conversation. There might have been some short conversation there.” (Emphasis added.)
From the trial court’s foregoing rationale and rulings, it is glaringly apparent that the trial judge was determined to reach his desired result in spite of and regardless of the evidence, or the restrictions he imposed on the evidence to be presented. Here, again, if there remained any doubt about these premises, such doubt is completely vanished by the trial judge’s following conclusions, findings and comments:
“THE COURT: *** [S]o on this hearing the court concludes that nothing alleged in the defendant’s motion has been established by the evidence. And the affiant, the defendant, having been granted a Franks motion and the evidence adduced during this hearing has produced no other fact or circumstance that would cause the court to alter its ruling, its prior ruling, in any way and that ruling is reaffirmed. And that ruling refers to the defendant’s original motion to quash a search warrant and suppress evidence which was denied, and it is again denied.” (Emphasis added.)
The trial judge was certainly aware of and clearly recognized the issue that was presented to him and which was to be decided by him. During the colloquy following the presentation of the evidence, the trial judge correctly articulated the issue:
“The issue here is the veracity of the police officer-affiant in making this affidavit that was made in support of this complaint for a search warrant. That’s the issue, his veracity. That is what has been tested on this hearing.”
Nevertheless, the trial judge capriciously and unlawfully restricted and excluded the presentation of extremely pertinent evidence on this issue. Moreover, pertinent evidence that was presented to him was either ignored by him or was discredited by him by resorting to illegal or unwarranted inference and baseless assumptions.
The defendant in the case at bar, who, for all that appears, has taken no oath to comply with, abide by or uphold the laws or the constitution of this land was charged with gambling, an enterprise in which the State and millions of citizens daily legally engage. The issue on his motion to quash the search warrant and suppress evidence was indeed a simple, but perhaps an unpleasant one. It involved and challenged the veracity and integrity of a law enforcement officer. Tragically, the issue in the case was needlessly escalated to the integrity of the judiciary by the trial judge, who has clearly manifested, in my judgment, that he is constitutionally unqualified to further preside over this case. (Aetna Life Insurance Co. v. Lavoie (1986), 475 U.S. 813, 825, 89 L. Ed. 2d 823, 835, 106 S. Ct. 1580, 1587; Turney v. Ohio (1927), 273 U.S. 510, 532, 71 L. Ed. 749, 758, 47 S. Ct. 437, 444.) From the facts presented below, one would hope that the prosecutor and the trial judge themselves would have, with fervent vigor, sought from the telephone company, the S & C Electric Company records and personnel, the informant and elsewhere to determine the true status of Officer Chambers’ veracity. But they did not do so, even though it was certainly their solemn, sworn duty to have done so. Accordingly, this case in my judgment should not be remanded to Judge Maloney for any further proceedings.
APPENDIX NO. 1
Colloquy exclusively between the trial judge and the defense counsel on the prosecutor’s objection to the admission of the Nancy Zymantas’ Bell Telephone bills into evidence.
“MR. SCHULTZ [Defense Attorney]: It’s [Nancy Zymantas Bell Telephone bills] in evidence, part of the record.
THE COURT: Not in this hearing.
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MR. SCHULTZ: It was made a part of that motion, your Honor. I’m simply asking that the witness be allowed to testify from documents which are — [ ]
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part of the petition, the document itself that was filed and made a part of the court record and about which there were hearings *** and about which the court referred to in a prior proceeding, to which this morning’s hearing — proceeding relates to. ***
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*** [I]n the course of the proceedings in this case in 1983 or in 1984 this particular petition, this motion that I’ve handed to Mr. Zymantas was presented and received by this court and the contents of it considered by this court, including the Xerox copy of the phone bill for the telephone number which is in question this morning.
THE COURT: Who testified in connection with it?
MR. SCHULTZ: I wasn’t here, your Honor.
THE COURT: Wait. Wait. You needn’t keep repeating that you weren’t here because you are here now and we assume that you know the answers to all the issues that you raise. You are raising the issue so we assume that you know from the record that you have dealt with. The fact that a document was referred to in the motion doesn’t put it in evidence.
MR. SCHULTZ: It is a part of that motion, your Honor, the same as the pleadings, your Honor. If I were to ask Mr. Zymantas to refer to and testify from the indictment in this cause — .
THE COURT: He couldn’t do it.
MR. SCHULTZ: In another courtroom, your Honor, I received a different ruling. Obviously, this court’s ruling controls.
THE COURT: Testify from an indictment that he didn’t prepare?
MR. SCHULTZ: Correct.
THE COURT: Supposing there was a mistake in the indictment that someone had prepared, would he go ahead and testify to that as though it was some verified fact?
MR. SCHULTZ: That was precisely the situation in the other case, your Honor.
THE COURT: I can imagine that it was. It would not be anything unusual in the kind of returns that we get from the grand jury division here, but I don’t understand though what new rule of evidence you're talking about, how something gets into evidence because it is pled it is automatically in evidence? This is something new.
MR. SCHULTZ: I believe that there are things that are before the court and which the court as fact-finder may be requested to take notice of and consider other than those things which are specifically placed into evidence through testimony, and I submit — .
THE COURT: There’s a photostat of some kind of a utility bill as a page in this pleading. Certainly there’s no entry into evidence by virtue of such an addition. It is, as you say, it is an attachment here following the affidavit So — .
MR. SCHULTZ: Your Honor, I-.
THE COURT: I don’t see any necessity of referring to it. The witness here is testifying from his personal knowledge of events, so I don’t see any necessity to refer to this.
He’s already testified he was not the subscriber. That’s his testimony under oath. He may also testify probably as to who the subscriber was, without any reference to this or verification or authentication.
MR. SCHULTZ: My purpose in seeking to elicit that testimony, your Honor, is because I think the court will properly weigh the testimony of this witness based on issues of credibility, and the document that I seek to have the witness testify from has an indicia of credibility that I think is greater than that, may well be greater than that, and that would be the purpose of offering it. Your Honor, I am taken by surprise — .
THE COURT: You can’t do it by referring to a page in your pleading and which contains a Xerox copy of some invoice.
MR. SCHULTZ: Your Honor, I’m taken by surprise.
THE COURT: I don’t know why.
MR. SCHULTZ: I’m taken by surprise because this court in the trial record frequently referred to the facts to its knowledge of the telephone number in question being registered to Nancy Zymantas. The Appellate Court record is replete with those same references, your Honor, and it is part of the pleadings.
THE COURT: I hope you’re not asking me to remember what I said during the course of this hearing in — What year was it?
MR. SCHULTZ: 1983.1 don’t know. ’84.
THE COURT: We’ve had a few hearings since then. I don’t recall everything that I said in all of the hearings and all of the trials. I do recall that I had a great deal to say in most hearings and trials.
MR. SCHULTZ: If the court does not recall the specific document and the court will not permit the witness to testify, not withstanding my argument, then I would respectfully — I believe — .
THE COURT: He can testify that was the telephone number at his residence, I mean if he chooses to, and that the subscriber was his wife.
MR. SCHULTZ: It’s my purpose to have him testify from a document which I think has particularly strong indicia of credibility as a business record or as a telephone bill does have. If the court will not permit that then I’m taken by surprise and I would respectfully request a continuance to permit me to bring in the caretaker of the record at Illinois Bell. I think it’s a routine matter. I have the original copy.
THE COURT: Is his wife available? She could testify, couldn’t she?
MR. SCHULTZ: His wife is not available. I think it would be necessary to obtain the caretaker of the records to authenticate this to satisfy the foundation requirement to have this received into evidence as a business record to permit the witness to testify to it and I will obtain that individual — .
THE COURT: Do you have the original there?
MR. SCHULTZ: Yes, I do, your Honor.
THE COURT: Let me see it. This is a February ’82 invoice. Oh, there’s [sic] two, two of them here?
MR. SCHULTZ: Yes.
THE COURT: Okay. I’ll put the April on top. You’ve got February and April, right?
MR. SCHULTZ: That’s correct.
THE COURT: Has the State seen the original?
MR. GROARE [assistant State’s Attorney]: I’ve seen the Xeroxes. I’m sure they’re identical.
THE COURT: We’ll accept this as factual, counsel, even though it’s a shortcut.
MR. SCHULTZ: Thank you, your Honor. May I approach the witness?
THE COURT: I’ve examined it. I will accept it as factual.
MR. SCHULTZ: May I publish it for the record?” (Emphasis added.)
APPENDIX NO. 2
Colloquy exclusively between defense counsel and the trial judge on the evidence restrictions caused by the trial judge’s adverse discovery rulings:
“MR. SCHULTZ [Defense Counsel]: Your Honor, the defense saw fit by its motion for discovery to make available all of those individuals, the identities of all of those individuals as well as all the documentation. The defendant’s motion to discover that was denied.
THE COURT: What individuals?
MR. SCHULTZ: Your Honor, in my motion to discover, which is in the court file, I sought the right to know the names of the individuals and thereby ask that the government be ordered to direct their — .
THE COURT: The officer testified that he doesn’t remember the name of the person that he spoke to.
MR. SCHULTZ: On the stand, but he says those are the things that he recorded in his notebook. Had the court granted my motion for discovery then the burden would have been on the State as in their role — .
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THE COURT: You didn’t say anything about his notebook. Why didn’t you ask him for it today?
MR. SCHULTZ: Your Honor, I specifically asked that I be allowed to discover that in my written motion. It is part of my written motion that was denied on Thursday. That is the reason I posed what the court — .
THE COURT: As I recall in your motion you wanted the telephone company security records and names of personnel.
MR. SCHULTZ: I also specifically requested that information from the police officer. *** My point is, your Honor, with respect to best evidence or evidence that is most probative of the issue, the court foreclosed my obtaining any other evidence than just the live testimony of the police officer.
THE COURT: No, I assumed you would have pursued that day. I didn’t think you were relying on any prior rulings.
MR. SCHULTZ: I asked him if he had his notebook with him and he said he did not.
THE COURT: Then you dropped it. Why didn’t you ask him where is it[?] Did you give it to the State? Does the State know where it is?
MR. GROARK [assistant State’s Attorney]: No, your Honor.
THE COURT: I expected you to pursue it. I was surprised that you discontinued your questioning. There was [sic] no objections sustained.
MR. SCHULTZ: Your Honor, on the basis of the ruling on my Motion For Discovery I was foreclosed from getting my hands on it.
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THE COURT: *** [Y]ou don’t mention anything here [in your discovery motion] about a notebook. Maybe you didn’t know about a notebook. But when it was mentioned today no ruling — no objection was made. You were entitled to pursue it as far as you wanted to.
MR. SCHULTZ: Your Honor, in this posture the officer indicated that he did not have — .
THE COURT: He didn’t have it with him.
MR. SCHULTZ: Therefore I had to be prepared for the hearing today. When I was foreclosed from obtaining discovery — .
THE COURT: Wfiiy didn’t you ask him where is it or does it still exist?
MR. SCHULTZ: That would not have been material or relevant to any issue or probative of anything — .
THE COURT: Well, then it was a matter of choice.
MR. SCHULTZ: I was barred from having access to it.
THE COURT: No, you weren’t. No, you weren’t at all. He mentioned, if you asked the question that you wanted to ask. As you say, to you it was not probative of any issue. So as I say, the McCray case has nothing to do with this.
The issue here is the veracity of the police officer-affiant in making this affidavit that was made in support of his complaint for a search warrant. That’s the issue, his veracity. That is what has been tested on this hearing.
MR. SCHULTZ: Your Honor, I think that his veracity— when I allege in my motion that he lied, that there was no informant I am, therefore, saying that the officer lied when he stated in his affidavit that he had any transaction with an informant. I sought to require that to be produced — that the informant be produced so that I could test whether there ever was an informant. I have now obtained the only evidence that was available from this police officer and that is that he has a recollection — .” (Emphasis added.)