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note: this article addresses the use of grand juries in California for criminal
indictments. This is outside the scope of the California Grand Jurors’
Association, which addresses the unique role of grand juries in each county
system to be a watchdog of local governments in investigating them with respect efficiency and effectiveness. Nevertheless, district attorneys in a few
California counties use grand juries to pursue criminal indictments. Tulare
County is one. This article by the District Attorney of Tulare County addresses
the bill recently signed by the governor that will prohibit district attorneys
from using the criminal grand jury process in cases involving the use of deadly
force by police officers. The bill responds to nationwide criticism of the
grand jury system due mainly to the recent incidents in Ferguson, Missouri, and
Staten Island, New York. We print this article to distinguish between the
criminal and civil functions of the grand jury.
Earlier this week, Gov. Jerry
Brown signed a bill that prohibits district attorneys from utilizing the
criminal grand jury process in cases involving use of deadly force by police
officers. No doubt, this was motivated in part by the national spotlight on
high-profile cases where grand juries refused to indict police officers. The
cases such as Ferguson, Mo., and Staten Island, N.Y., certainly have
contributed to the notion that the grand jury system is flawed. Additionally,
this sentiment is being fueled by one-sided articles such as a recent piece in the
Los Angeles Daily Journal entitled “Grand Juries vs. Bad Cops; Mischief is the
natural result of secret proceedings.”
This is yet another notch in
the belt of those loudly launching attack after attack on American law
enforcement and our justice system in general. It is important to know how your
Tulare County criminal grand jury system works, when and why it is used, and
the reverence in which every prosecutor in my office holds it.
Much like regular jury service,
a prospective criminal grand jury member receives a jury summons and reports to
the courthouse where they may be selected to serve. Once a criminal grand jury
is seated, it will hear a case before it has been filed. If the grand jury
feels there is enough evidence to indict, the case proceeds through the justice
system like any other criminal felony case. Once the indictment is filed with
the court, it is subject to the same judicial scrutiny given any other case.
The role of the grand jury is not to determine guilt or innocence, it simply determines
if there is sufficient evidence to justify criminal charges.
The criminal grand jury system
was not designed to be transparent – just the opposite. In fact, there are some
national headlines where a state attorney general is being prosecuted for disclosing
information related to a grand jury proceeding.
Instead, the criminal grand
jury provides a venue where witnesses can come forward with the protection of
confidentiality.
Ironically, it will also
protect the accused. If the grand jury does not find there is enough evidence
to indict, this individual remains confidential as well. That is not the case
in a preliminary hearing. A cloud of scrutiny could remain on the defendant
even if he or she was not bound over at preliminary hearing.
In California, if an indictment
is returned there are provisions for the transcript to be released. However,
the law prevents the transcript from being released if there is no indictment.
Yet, some would advocate that
this constitutional secrecy is prone to misuse. I was particularly incensed to
read the Daily Journal article criticizing the grand jury in favor of the
“normal” process of a preliminary hearing because, it said, as an open
proceeding the preliminary hearing afforded public scrutiny of the evidence
presented. The author suggested that charges should be filed by criminal
complaint, and then afforded judicial scrutiny in the preliminary hearing.
This is misleading and I
believe completely bereft of our ethical responsibilities as a prosecutor. To
file criminal charges is a serious consideration and one made only after there
is sufficient evidence presented which would sustain a conviction in a criminal
court. We do not abrogate our ethical responsibility, file criminal charges
regardless of evidence and use the preliminary hearing process to weed out
those where charges were never warranted.
Some of the reasons why a
prosecutor may choose to use a grand jury are because the case may be very
complex, such as fraud cases or white-collar crimes, instances where a victim
or witness may be reluctant to come forward or, as stated by the California
District Attorney’s Association in its opposition to this bill, “… they are a
useful tool in cases where evidence is unclear, subject to conflicting accounts
… and provides input from the members of the community.”
By presenting the case in front
of 12 impartial members of the community, there are other several sets of eyes
examining the same facts, weighing the credibility of a witness’s testimony,
and coming to a conclusion. Since any accused is not represented by council
during a criminal grand jury, it might be surprising to some to learn that the
California prosecutor, unlike others across the nation, has an ethical
responsibility to proffer any and all evidence to the grand jury that might
reflect on innocence. In fact, failure to do so could result in any indictment
returned being subsequently dismissed by a Criminal Court judge. It is not the
desire of a prosecutor to sway the ultimate finding of the grand jury by offering
evidence favorable to the accused. Instead, it is an ethical mandate.
The decision to file criminal
charges is a serious undertaking. We do not go about it casually or because of
political pressures. We make our decisions based on whether there is sufficient
evidence to convince a jury of guilt. In cases where it simply not abundantly
clear, the criminal grand jury is a vehicle to provide community fairness to
this process. As prosecutors, we are bound by the same ethical obligations, the
same responsibilities in a grand jury case as we are in any other proceedings.
In fact, our obligations are even stricter when dealing with grand juries.
In Tulare County, we utilize
the criminal grand jury process sparingly, yet we have great reverence to the
process. We have seen time and time again how it can be beneficial to our
community. Though I’m sure the national focus on police officer use of force
will continue, based on Gov. Brown’s actions this week, no longer can a
criminal grand jury be utilized as an option in these decisions. The impact in
California will be interesting to watch.
I believe it is important to
keep an open and active dialogue about officer-involved shootings. We need to
move past rhetoric and have meaningful conversations that lead to solutions.
Since I appreciate the
community’s input in such matters, how do you feel about the elimination of
Criminal Grand Juries in officer involved shootings that result in death?
August 15, 2015
Visalia
Times-Delta
By Tim
Ward, Tulare County District Attorney
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