Saturday, December 18, 2021

Q&A: Corruption accusations against the Santa Clara County sheriff — and how they might lead to her removal

 A rundown of key questions raised, and re-raised, by the civil grand jury taking a step toward removing the South Bay’s longtime sheriff over pay-to-play and jail scandals.

On Tuesday, Santa Clara County’s civil grand jury formally accused Sheriff Laurie Smith of seven counts of willful misconduct, alleging she abused her authority to issue concealed-gun permits to extract political favors, and stalled an outside investigation into her office’s handling of a high-profile 2018 jail inmate injury.

A civil grand jury accusation of willful and corrupt misconduct is rarely invoked in California. Here’s what their decision means, and what comes next.

What is the civil grand jury, and what did they decide this week?

In Santa Clara County, the civil grand jury is a civilian watchdog body appointed by the Superior Court. It typically investigates government efficiency and equity matters, and makes recommendations. But it also has legal authority to investigate public officials for misconduct and corruption, and it can set in motion a trial to remove an elected official.

The civil grand jury’s accusation this week means Smith must appear in court on Jan. 12. If she pleads not guilty to the accusation – which her attorney has said will happen – then a judge will begin setting trial dates.

How would this trial be similar to or different from a criminal trial?

Procedurally, a trial based on a civil grand jury accusation operates similarly to a criminal trial in terms of selecting a jury, hearing witnesses and evaluating evidence, and arguing for the accused official’s guilt or innocence.

“It’s identical to a prosecution on an indictment in every shape and form,” said William Larsen, a retired prosecutor in San Mateo and Santa Clara counties and one of few statewide experts on this procedure.

One key difference: A guilty verdict would lead to the person being forcibly removed from their office. A person found guilty can appeal.

What outcome would be needed to compel Smith’s removal?

A jury finding Smith guilty of just one of the seven counts would prompt her removal from office by the court, Larsen said.

“If any one of the charges is found to be guilty, the judge will set the case for formal removal from office proceedings, usually a week or two later,” he said.

What are the accusations against the sheriff?

Smith is being accused of six counts of “willful and corrupt” misconduct in how she and her office issued concealed-carry weapons permits. The civil grand jury accused her of heavily favoring campaign donors, supporters and high-profile people while ignoring permit applications from ordinary residents.

A criminal indictment on bribery charges has already been brought against Smith’s undersheriff and a captain, alleging they brokered the the exchange of gun permits for political campaign cash or in-kind donations.

In one instance, the civil grand jury found that Smith illegally accepted the use of a San Jose Sharks luxury suite from a donor and gun-permit recipient. The accusation adds that Smith ordered a staff member to buy cheaper-seat tickets for the same game, to mask her use of the suite and circumvent laws limiting her reception of gifts worth more than $500 from a single source.

Smith is also accused of one count of willful misconduct — without corruption — for allegedly withholding information from the county law-enforcement monitor’s probe into her agency’s response to a psychiatric emergency involving former jail inmate Andrew Hogan, who in 2018 severely injured himself in a jail-transport van. The case led to a $10 million county settlement.

If most of this was part of a criminal indictment, how did this get before the civil grand jury?

In August, county supervisors Joe Simitian and Otto Lee sponsored a board referral requesting external state-level investigations into how Smith’s office handled severe injury cases of mentally ill men being held in jail, as well as the gun permit scandal. The civil grand jury received the request, and in October, began calling witnesses, many of whom had testified to the criminal grand jury last year.

The state’s Fair Political Practices Commission was already investigating the luxury-suite claim prior to the board referral.

How often are civil grand jury accusations like this filed, and go to trial?

It’s rare. Larsen says only about 100 local officials have been removed under the law in California in the past century and a half.

The Bay Area saw a civil grand jury accusation go to trial just last year, when Contra Costa County Assessor Gus Kramer was accused of creating a hostile workplace with sexual comments and use of an ethnic slur. A jury deadlocked in that case and Kramer kept his job.

Why did the San Francisco District Attorney’s Office file the civil grand jury’s accusations against Smith?

An assistant district attorney in San Francisco was appointed by the Superior Court to guide the civil grand jury, to avoid a conflict involving the Santa Clara County Counsel’s Office, which represents both the board of supervisors and Smith’s office.

What’s the latest with the criminal indictment regarding the concealed-gun permits?

The Santa Clara County District Attorney’s Office is in the process of prosecuting three people named in the first indictment filed in August 2020 – involving Smith’s captain and two other defendants – and three people in the second indictment filed in November 2020, including the same captain and an undersheriff.

In the first indictment, three men running an executive security firm pleaded guilty to misdemeanor conspiracy and bribery charges, and have agreed to cooperate with prosecutors. One even clandestinely recorded an incriminating conversation with the sheriff’s captain related to a $90,000 proposed political donation to support 2018 Smith’s re-election, in exchange for gun permits for the firm’s employees.

Smith has not been indicted even though she is the sole signatory of the permits. When she was called before a criminal grand jury in the summer of 2020, she invoked her Fifth Amendment rights in refusing to testify.

Two key defendants have been dropped from the indictments. A political fundraiser supporting Smith persuaded an appellate court to declare a conflict with District Attorney Jeff Rosen, who the fundraiser had supported politically. His charges were subsequently dismissed by the state Attorney General’s Office.

In the second indictment, an Apple security executive was dismissed from the case after a trial-court judge decided there wasn’t enough evidence to prove that his proposed donation of iPads to the sheriff’s office was a bribe to hasten the issuing of gun permits to his security team.

Bay Area News Group
By ROBERT SALONGA | rsalonga@bayareanewsgroup.com
December 16, 2021

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