BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 227        Hearing Date:    April 21, 2015    
          
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          |Author:    |Mitchell                                             |
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          |Version:   |March 19, 2015                                       |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|JRD                                                  |
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                     Subject:  Grand Juries:  Powers and Duties



          HISTORY

          Source:   Author

          Prior Legislation:None known

          Support:  California State Conference of The National  
                    Association for the Advancement of Colored People;  
                    Friends Committee of Legislation of California;  
                    California Public Defenders Association; California  
                    Attorneys for Criminal Justice; Office of the  
                    independent Police Auditor, City of San Jose

          Opposition:California District Attorneys Association
           
          
          PURPOSE
          
          The purpose of this legislation is to prohibit a grand jury from  
          inquiring into an offense that involves a shooting or use of  
          excessive force by a peace officer, as specified, that led to  
          the death of a person being detained or arrested by the peace  
          officer, as specified.  

          Existing law provides that one or more grand juries shall be  







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          drawn and summoned at least once per year in each county.   
          (California Constitution Article I, Section 23.)

          Existing law requires that in all counties there shall be at  
          least one grand jury drawn and impaneled in each year.  (Penal  
          Code § 905.)

          Existing law provides that when the grand jury is impaneled and  
          sworn, it shall be charged by the court and the court shall give  
          the grand jurors such information as it deems proper, or as is  
          required by law, as to their duties and as to any charges for  
          public offenses returned to the court or likely to come before  
          the grand jury.  (Penal Code § 914(a).)

          Existing law provides that the grand jury may inquire into all  
          public offenses committed or triable within the county and  
          present them to the court by indictment.  (Penal Code § 917.)

          Existing law states that if a member of a grand jury knows, or  
          has reason to believe, that a public offense, triable within the  
          county has been committed, he may declare it to his fellow  
          jurors, who may investigate it.  (Penal Code § 918.)

          Existing law states that a grand jury may inquire into the case  
          of every person imprisoned in the jail of the county on a  
          criminal charge and not indicted.  (Penal Code § 919(a).)

          Existing law states that a grand jury shall inquire into the  
          condition and management of the public prisons within the  
          county.  (Penal Code § 919(b).)

          Existing law states that a grand jury shall inquire into the  
          willful or corrupt misconduct in office of public officers of  
          every description within the county.  (Penal Code § 919(c).)

          This bill would prohibit a grand jury from inquiring into an  
          offense that involves a shooting or use of excessive force by a  
          peace officer, as specified, that led to the death of a person  
          being detained or arrested by the peace officer, as specified.  

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                          
          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  








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          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  








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               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.  Need for Legislation

          According to the Author:

               SB 227 prohibits the use of a criminal grand jury when  
               evidence indicates a peace officer's use of excessive  
               force or a firearm may have contributed to the death  
               of a person being detained or arrested by the peace  
               officer.

               There is virtually no available information on how  
               criminal grand juries are used in California; no data  
               on the number of cases that are heard, the kinds of  
               cases that are heard, or the outcomes of those  
               proceedings.  Some counties (specifically Los Angeles  
               and Santa Clara counties) have adopted policies that  
               preclude the criminal grand jury being used in cases  
               where an officer's actions may be the cause of the  
               death of a suspect.  However, these policies have been  
               instituted at the will of the county's district  
               attorneys and are subject to change at any time.

               The grand jury system has recently come under fire  
               nationally as several incidents of officer-involved  
               deaths have resulted in the officers in question being  
               released without charges.  To the public who has  
               witnessed these incidents, the outcome of the criminal  
               grand jury proceedings can seem unfair or  
               inexplicable.  The criminal grand jury system lacks  
               transparency and is not adversarial in nature; No  
               judges or defense attorneys participate.  The rules of  
               evidence do not apply; there are no cross-examinations  
               of witnesses, and there are no objections.








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               When the actions of a peace officer result in the  
               death of a member of the public, it is crucial that  
               there is transparency in court proceedings.   
               Transparency and accountability are key to  
               establishing and keeping the trust of the public. 

          2.  Recent Events 

          In the wake of the deaths of Eric Garner and Michael Brown,  
          Judge La Doris Cordell called for abolishing the grand juries in  
          a recent editorial:


               In state courts, judges preside over probable cause  
               hearings called preliminary examinations.  These  
               "prelims" are open to the public, and they are  
               adversarial. Witnesses are questioned and  
               cross-examined by prosecutors and defense attorneys,  
               all of whom must abide by the rules of evidence.


               About half of the states have both prelims and  
               criminal grand juries.  In these states, it is in the  
               sole discretion of prosecutors whether to hold prelims  
               or to convene grand juries.  Unlike prelims, criminal  
               grand jury proceedings are not adversarial.  No judges  
               or defense attorneys participate.  The rules of  
               evidence do not apply; there are no cross-examinations  
               of witnesses, and there are no objections.  How  
               prosecutors explain the law to the jurors and what  
               prosecutors say about the evidence are subject to no  
               oversight.  And the proceedings are shrouded in  
               secrecy.


               In high-profile, controversial cases, where officers  
               use lethal force, prosecutors face a dilemma.  If they  
               don't file charges against officers, they risk the  
               wrath of the community; if they do file charges, they  
               risk the wrath of the police and their powerful  
               unions.  By opting for secret grand jury proceedings,  
               prosecutors pass the buck, using grand jurors as pawns  
               for political cover.  The Michael Brown and Eric  








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               Garner cases are examples of how prosecutors  
               manipulate the grand jury process.


               In the Michael Brown case, an assistant prosecutor  
               gave an instruction to the jurors about the law on an  
               officer's reasonable use of force.  However, in 1985  
               the U.S. Supreme Court revised this law by placing  
               some limits on the use of force. When officer Darren  
               Wilson testified, the jurors understood his story  
               within the framework of the erroneous, broader  
               definition of the use of force.  It was not until  
               weeks later that the prosecutor acknowledged her  
               error; and even then, she failed to explain to the  
               jurors how the current law differed from the pre-1985  
               version.  This egregious error would not have occurred  
               had a judge and defense attorney been in the room.


               The version of Michael Brown's shooting that the grand  
               jurors heard was engineered by the prosecutors, who  
               vigorously questioned witnesses when their testimony  
               contradicted Wilson's story and barely questioned  
               witnesses whose testimony supported the officer's  
               version.  Wilson received especially lenient treatment  
               by the lead prosecutor.  The final question he asked  
               was whether there was anything else that Wilson wanted  
               the jurors to know.  He did:

                    One of the things you guys haven't asked that has  
                    been asked of me in other interviews is, was he a  
                    threat, was Michael Brown a threat when he was  
                    running away.  People asked why would you chase  
                    him if he was running away now.  I had already  
                    called for assistance.  If someone arrives and  
                    sees him running, another officer and goes around  
                    the back half of the apartment complexes and  
                    tries to stop him, what would stop him from doing  
                    what he just did to me to him or worse ? he still  
                    posed a threat, not only to me, to anybody else  
                    that confronted him.

               There was no defense attorney to question Wilson's  
               self-serving statement to the jurors.








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               The prosecutor improperly asked Wilson leading  
               questions that suggested the answers the prosecutor  
               wanted.  For example, he asked the officer, "So, you  
               weren't really geared to handle that call?" And: "So  
               nobody heard you say 'shots fired' to your knowledge?"  
               And: "In your mind, him grabbing the gun is what made  
               the difference where you felt you had to use a weapon  
               to stop him?" At one point, the prosecutor allowed  
               Wilson to give an uninterrupted 1,889-word narrative  
               about the shooting.


               All that we know about the Eric Garner grand jury  
               proceeding is that a majority of the grand jurors refused  
               to indict the officer.  We will never know why there was no  
               indictment because what the prosecutors said, how they said  
               it, what evidence they presented, and what they asked the  
               witnesses will forever remain secret, unless the transcript  
               is opened to the public by court order.


               Secrecy in grand jury proceedings was intended to protect  
               the reputations of the unindicted, individuals accused of  
               crimes who grand jurors determined should not stand trial.   
               The entire world knew the names of the unindicted officers  
               in the Garner and Brown cases.  Grand jury secrecy did  
               nothing to protect their reputations.


               By convening grand juries, the prosecutors in Missouri and  
               New York ensured that there would be no justice for Michael  
               Brown and Eric Garner.  Sadly, these two men are gone. But  
               if we abolish criminal grand juries, at least their deaths  
               will not have been in vain.


          (Grand Juries Should be Abolished, LaDoris Hazard Cordell,  
          December 9, 2014,  
          http://www.slate.com/articles/news_and_politics/jurisprudence/201 
          4/12/abolish_grand_juries_justice_for_eric_garner_and_michael_bro 
          wn.single.html?print.) 









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          3.  Effect of This Legislation

          This legislation would prohibit a grand jury from inquiring into  
          an offense that involves a shooting or use of excessive force by  
          a peace officer that led to the death of a person being detained  
          or arrested.  As discussed in an opinion by the Attorney  
          General's office, a grand jury typically hears matters that are  
          brought by the district attorney, but has the ability to  
          initiate its own investigation.  

               The accusatory functions of the grand jury authorized  
               by section 917 and Government Code section 3060 are  
               usually initiated by the district attorney who is  
               authorized by section 935 to present evidence of crime  
               or official misconduct to the grand jury.  The  
               district attorney will have had the offense  
               investigated and will have marshalled the evidence  
               relevant thereto prior to its presentation to the  
               grand jury.  The grand jury then evaluates the  
               evidence in secret deliberations (see §§ 939, 924.2)  
               and decides by vote whether to issue an indictment or  
               accusation. This investigative process on which an  
               indictment or accusation may be founded may be styled  
               a formal investigation by the grand jury.  All  
               testimony must be sworn and only evidence which is  
               admissible over objection in a criminal trial may be  
               received in such formal investigations.  (§ 939.6.)  A  
               stenographic reporter must record the testimony in  
               shorthand and prepare a transcript thereof. (§§ 938 &  
               938.1.)  An indictment can be found only with the  
               concurrence of 12 grand jurors (14 for 23 member grand  
               juries) and 12 votes are also required for an  
               accusation.  (See § 640 & Gov. Code, § 3060.)  Grand  
               jurors voting for an indictment must have heard all of  
               the evidence presented thereon.  (Stern v. Superior  
               Court (1947) 78 Cal.App.2d 9, 16.) 

          (Office of the Attorney General of the State of California, No.  
          83-903, 67 Ops. Cal. Atty. Gen. 58.)



          The opinion goes on to state: 









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               The grand jury is not limited to matters initiated by  
               the district attorney in performing its accusatory  
               role.  Section 918 provides:

               "If a member of a grand jury knows, or has reason to  
               believe, that a public offense, triable within the  
               county, has been committed, he may declare it to his  
               fellow jurors, who may thereupon investigate it."

          (Id.) 

          As currently drafted, this legislation could be read to limit  
          the ability of a grand jury to, on its own, initiate an  
          investigation into an offense that involves a shooting or use of  
          excessive force by a peace officer that led to the death of a  
          person being detained or arrested.  In order to preserve the  
          ability of the grand jury to investigate such matters on its  
          own, members may wish to consider recommending an amendment  
          stating that the prohibitions added by this legislation are not  
          intended to impede the powers provided to the grand jury in  
          Penal Code Section 918.
           
           
                                          


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