Friday, April 23, 2010

Editorial: Marin DA made wrong choice in probing grand jury report

Posted: 04/23/2010 05:30:10 AM PDT

DISTRICT ATTORNEY Ed Berberian's investigation into the unauthorized circulation of the county civil grand jury's report on Marin's public energy startup came up emptyhanded.

We are puzzled that Berberian considered this issueƊimportant enough for his staff to spend time on, other than he might not have wanted to say "no" to Supervisor Charles McGlashan, who sought the county probe as a way to publicly discredit the report, which was critical of his pet energy project.

Berberian has not made a particularly good case for putting his investigators on this matter.

He may have thought he was rushing to protect the integrity of the grand jury process, but even if the grand jury's strict confidentiality rules had been breached by the wider than expected circulation of the courtesy advance copies of this report, we don't view that as a violation that warrants an official investigation.

Marin has a talented and hardworking district attorney office. There are bigger fish to fry.

The civil grand jury has not publicly voiced any consternation over the early release and circulation of its report. Perhaps the grand jury should take a look into Berberian's decision to do McGlashan's bidding.

What was at stake? What's the offense? Does anyone care?

Besides McGlashan. He blasted the report, and the honest, hard work of the grand jury because he disagreed with its findings on a controversial project that he's championed passionately.

His public call on Berberian to investigate the issue was part of his hyperbolic attempt to characterize the grand jury as a political tool of PG&E, which is fighting the county's green energy initiative.

There hasn't been a public peep from the grand jury that it was worried that its process had been seriously compromised. But Berberian cast his office's investigation as a look into a possible violation of a grand juror's sworn duty to keep the reports confidential before their public release date.

Berberian is a fine prosecutor and he ably heads and directs a strong team of attorneys and investigators. In this case, however, the public would have been better served by his office pursuing complaints about violations of campaign laws and open-government rules.

The grand jury, as a courtesy, releases advance copies of its report to affected parties. In this case, the grand jury's report was widely circulated - 49 copies - several days before its official release.

The grand jury's release of so many copies, Berberian concluded, "greatly compromised the likelihood of maintaining confidentiality for the prescribed period." Again, we are talking about only a handful of days.

The district attorney even suggested that those who circulated the report may have done so without any knowledge that they had advance copies that weren't supposed to be "public" until Dec. 7.

Berberian's advice is that the grand jury should restrict the circulation of advance copies and make confidentiality requirements clear.

We are not sure that advice is worth the expense of having an investigator look into this "violation."

Of course, newspapers are typically not adverse to leaks, but in this case there doesn't seem to be a serious breach.

Berberian, one of the few independently elected county officials left, should show greater independence and make sure that precious county resources are committed to the pursuit of violations that are more consequential than circumstantial.

McGlashan sent county investigators on a political wild goose chase. We're surprised his fellow board members, who have said repeatedly how important it is that the county watch its pennies, stood by and silently watched as a county investigation was launched.

Was a law broken? Possibly. Was it worth a formal county investigation? No.

Berberian's decision to search for a smoking gun was fruitless. The only thing it did was reinforce McGlashan's unfair attack on the grand jury, an independent panel of citizens who essentially volunteer their time to examine local governmental issues. The grand jury deserves to be treated with more respect.

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