dissenting:
The majority, in reversing and remanding this case, has disregarded factual findings made by the trial court. It reversed the trial court for enforcing a vague agreement, although the trial court expressly refused to enforce the agreement. It has also ignored state and federal case law defining obligations of governmental law enforcement agencies to deal fairly and in good faith in soliciting the cooperation of persons charged with criminal offenses to relinquish their privilege against self-incrimination.
Persons who enter into cooperation agreements with the government in criminal cases do so because they are in serious legal difficulties and are seeking to avoid or ameliorate their problems by furnishing information in pending investigations. The bargaining positions are not equal. The government has the upper hand. For this reason, extensive state and federal legal authority requires that governmental agencies deal fairly with a defendant in offers of immunity or sentencing consideration to obtain a waiver of constitutional rights in exchange for information exposing him to additional criminal liability. United States v. Knights, 968 F.2d 1483 (2d Cir. 1992); United States v. Rexach, 896 F.2d 710 (2d Cir. 1990); People v. Raymond, 202 Ill. App. 3d 704, 560 N.E.2d 26 (1990). The terms of the bargain must be spelled out in terms explicit enough for an independent trier of fact to determine that the defendant was fully and fairly informed of what he was to receive in exchange for the relinquishment of his rights. If this does not occur, contrary to the majority conclusion, the relinquishment is not voluntary in the constitutional sense. Raymond, 202 Ill. App. 3d at 708-09.
Under the majority’s analysis, if the government couches a cooperation agreement in vague and uncertain terms, it may'induce a defendant charged with serious criminal offenses to waive his privilege against self-incrimination, testify before an investigative body, implicate himself in further criminal activity, and incur, in return, no obligation whatever to give any consideration therefor in its sole and unfettered discretion. In other words, vagueness in defining the government’s obligations to a defendant in an agreement written by the government inures to its benefit, to the detriment of the defendant. There is much legal authority to the contrary. People v. Weilmuenster, 283 Ill. App. 3d 613, 670 N.E.2d 802 (1996); People v. Schmitt, 173 Ill. App. 3d 66, 527 N.E.2d 382 (1988), rev’d on other grounds, 131 Ill. 2d 128, 545 N.E.2d 665 (1989); United States v. Fields, 766 F.2d 1161 (7th Cir. 1985).
Defendant brought a motion before the court to compel specific performance of a cooperation agreement between the IAGO and defendant. The trial court determined the constitutional issue at hand to be whether the State engaged in a course of conduct in soliciting defendant’s cooperation and relinquishment of his privilege against self-incrimination that gave him a reasonable expectation of receiving some consideration from the CCSAO on the disposition of his pending criminal charges.
That is an issue of fact. The trial court held an evidentiary hearing and heard testimony from many witnesses. The testimony of defendant’s witnesses contradicted that of Agent Reichenberger, AAG Lemons and defendant’s former attorney, Barnett. The court made explicit findings of fact and gave reasons why it did not find the testimony of Reichenberger and Barnett, that defendant was just volunteering his cooperation in exchange for nothing, to be credible.
The majority states that defendant surrendered his constitutional rights against self-incrimination in his interview with Reichenberger and before the statewide grand jury voluntarily so that his attorney would have a basis for argument in mitigation at the sentencing proceedings on defendant’s pending cases. The majority bases its conclusion on the testimony of attorney Barnett and Agent Reichenberger. The trial court heard Barnett’s testimony that no promises were made by either agency in exchange for his cooperation and evaluated it as follows:
“It strains credulity to accept the proposition that defendant voluntarily and knowingly placed himself in the position [of effectively surrendering his defense in this case] based on public spirited notions, without any expectations of benefit to himself. He was clearly attempting to minimize his predicament.”
The trial court questioned Barnett with respect to his testimony that defendant was not promised anything in return for his cooperation. The trial court asked Barnett if defendant “was to waive his fifth amendment rights and undertake whatever risks are involved in his cooperating with the State, and it is left entirely in the discretion of the State’s Attorneys and/or the Attorney General to decide what, if anything, they do?” Barnett responded that this was correct. The trial court found that Barnett’s testimony defied common sense and that Barnett’s testimony was motivated by Barnett’s own interests.
Agent Reichenberger testified that no promises of boot camp or probation were made to the defendant but defendant’s cooperation would be made known to the CCSAO for its consideration. The majority cites this testimony in support of its conclusion that defendant was offered nothing in exchange for his testimony. The trial court, however, in evaluating this testimony, said in its dispositional order:
“While that may be true [that no specific promises were made], it seems incredible that no discussion whatsoever was had as to what the defendant could expect for his cooperation. *** The state virtually concedes that it was required to consider defendant’s performance, and if satisfied, determine what consideration would be forthcoming.”
Again, there is nothing in the record to support the majority’s bestowing more credibility on this witness than did the trier of fact after an evidentiary hearing.
The case of People v. Weilmuenster, 283 Ill. App. 3d 613, 670 N.E.2d 802 (1996), is directly on point. There was a written judicial order stating that Weilmuenster had been given only “use” immunity in exchange for his cooperation, and the trial judge had admonished him as to the scope of this grant. The trial judge also stated in the order that he believed Weilmuenster understood the admonition. Over objection by the LAGO, and the judicial order notwithstanding, the trial court reopened the proofs to determine, as defendant alleged, whether the government had engaged in a course of conduct after the entry of the judicial order that gave defendant a reasonable expectation that he would be given broader “transactional” immunity foreclosing prosecution on the pending charges. The testimony of the government and defense witnesses conflicted, as it did in the case at bar. The trial court in Weilmuenster resolved the matter of witness credibility in favor of the defense, as did the judge in the case at bar.
A unanimous panel of this court, second district, affirmed dismissal of the indictment by the trial court to prevent a miscarriage of justice after a determination that it could not grant specific performance of the immunity agreement. If the legal analysis of the majority in the case at bar is applied to the facts in Weilmuenster, defendant loses, because the only writing defining the scope of the immunity conferred was the judicial order granting “use” immunity that did not bar prosecution on his pending drug charges in that case. The only reason for the difference in result between Weilmuenster and the case at bar is that the reviewing court in Weilmuenster gave proper deference to the factual determinations of the trial court, and the majority of this court in the case at bar does not.
As the trial judge in the case at bar correctly found, there was a concerted effort by defendant’s lawyer and the governmental agencies involved to shroud the consideration defendant was to receive in ambiguity and obscurity. If the defendant’s attorney and the governmental agencies involved had made a reasonable effort to set forth the exact nature of their understanding, this entire controversy could have been avoided. They chose not to do so. The Attorney General wrote the agreement and ambiguities are resolved in favor of the defendant. Weilmuenster, 283 Ill. App. 3d at 625.
Relying on People v. Navarroli, 121 Ill. 2d 516, 521 N.E.2d 891 (1988), the majority says that, in the absence of an agreement to dismiss, the court erred in dismissing the charges because plea agreements are only enforceable when a defendant enters a guilty plea in reliance on a prosecutor’s promise. This principle does not apply to the case at bar because the written agreements in question were not plea agreements, but were specifically described therein as cooperation agreements. In a plea agreement, a defendant gives up his constitutional right to trial in exchange for consideration. Nothing has been relinquished until defendant pleads guilty. In a cooperation agreement, the defendant relinquishes his fifth amendment privilege against self-incrimination and implicates himself and others in criminal conduct. People v. Raymond, 202 Ill. App. 3d 704, 560 N.E.2d 26 (1990). Defendant in the case at bar did precisely that before the statewide grand jury. The trial court explicitly found that the defendant by so doing had placed himself in a position where it would be impossible for him to make a defense in these cases or minimize the seriousness of the offenses.
Finally, the trial court did not order specific performance of any agreement expressed or implied. It dismissed the indictment under the inherent authority of the court to avert a miscarriage of justice. This remedy was granted by the trial court in Weilmuenster under circumstances strikingly similar to those involved in the case at bar. The propriety of granting that remedy was upheld by a unanimous panel of this appellate court.
The trial court dismissed the indictment because the record showed that defendant cooperated fully with the government in response to its solicitation, testifying fully and truthfully before a grand jury. The CCSAO was aware of the IAGO investigation and did not object to the activities of the IAGO in convening the grand jury. Indictments returned therefrom would be prosecuted by the CCSAO. The IAGO was acting within its authority, and the CCSAO is bound by the IAGO agreement with defendant. People v. Buffalo Confectionery Co., 78 Ill. 2d 447, 401 N.E.2d 546 (1980); People v. Massarella, 72 Ill. 2d 531, 382 N.E.2d 262 (1978). Agent Reichenberger knew of defendant’s three pending felony charges when he solicited defendant’s cooperation with the LAGO. He also knew the agreement with the CCSAO had been revoked and had consulted with the ASA who wrote that agreement. Defendant, the trial court found, under these circumstances had a reasonable expectation that he would receive some consideration in exchange for his truthful testimony before the grand jury, as had John Dasaky and Lisa Megan. John Dasaky and Lisa Megan had to testify for the IAGO before the statewide grand jury in order to receive their pre-plea “consideration” from the CCSAO. Their cooperation agreements with the CCSAO also were not specific about what consideration they would receive. The trial court was not able to determine what consideration was offered to defendant because the IAGO agreement was vague and unclear. After the defendant gave his full cooperation and truthful testimony before the statewide grand jury, the CCSAO took the position that it had no obligation to give defendant any consideration, and it offered none. Under the facts of this case as determined by the trial court, the CCSAO’s repudiation of any obligation to give consideration to defendant constituted bad-faith conduct and an embarrassment to the ethics of the commercial market place in addition to those of the criminal justice system. The trial court in the case at bar, as in Weilmuenster, found that under the facts presented, specific performance could not be granted. It then exercised the only remedy available that protects the integrity of the judicial process and the due process rights of the defendant by dismissing two of the indictments against defendant.
The memorandum and opinion of the trial court details its factual findings and reasons therefor. It also cites extensive state and federal authority supporting its conclusions of law and relief granted based thereon. It is appended as an unpublished addendum hereto.
For the foregoing reasons, I dissent.