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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