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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