If counsel had failed to inform defendant of the plea offer, it is arguable that
his assistance was deficient. Because defendant alleged that he would have
accepted the offer had he been advised of it, he has arguably been prejudiced by
counsel’s deficient performance if he can establish that the offer was not
communicated to him. Therefore, the claim did not lack legal merit.
(Defendant was represented by Assistant Defender Jeffrey Svehla, Chicago.)
INDICTMENTS, INFORMATIONS, COMPLAINTS
People v. Reimer, 2012 IL App (1st) 101253 (No. 1-10-1253, mod. op. 5/8/12)
1. In proceedings before the grand jury, the State’s Attorney acts as an
advisor in terms of the applicable law and the proposed charges. Challenges to
grand jury proceedings are limited; a defendant may not challenge either the
validity of an indictment returned by a legally constituted grand jury or the
sufficiency of the evidence considered by the grand jury (so long as some evidence
was presented). However, a defendant may challenge an indictment which resulted
from prosecutorial misconduct which violated due process.
When ruling on a motion to dismiss an indictment, courts typically consider
only the transcript of the proceedings before the grand jury. Prosecutorial
misconduct before the grand jury warrants dismissal of the indictment if that
misconduct violated due process and resulted in actual and substantial prejudice
to the defendant. Prosecutorial misconduct violates due process if the prosecutor
deliberately or intentionally misleads the grand jury, uses known perjury or false
testimony, or presents deceptive or inaccurate evidence. An indictment may also
be dismissed where the prosecutor applied undue pressure or coercion so that the
indictment is, in effect, the action of a prosecutor rather than the grand jury.
Whether the prosecutor’s misconduct before the grand jury caused a
prejudicial denial of due process is reviewed de novo.
2. The prosecutor engaged in misconduct when, in responding to questions
from the grand jury, he twice elicited testimony which misstated the applicable
law. Defendant was indicted for home repair fraud for allegedly entering into a
home repair contract which he did not intend to perform or knew would not be
performed. In response to questions by the grand jury, the prosecutor elicited
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