BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 227| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: SB 227 Author: Mitchell (D) Amended: 4/27/15 Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 5-2, 4/21/15 AYES: Hancock, Leno, Liu, McGuire, Monning NOES: Anderson, Stone SUBJECT: Grand juries: powers and duties SOURCE: Author DIGEST: This bill prohibits 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. ANALYSIS: Existing law: 1)Provides that one or more grand juries shall be drawn and summoned at least once per year in each county. (California Constitution Article I, Section 23.) 2)Requires that in all counties there shall be at least one grand jury drawn and impaneled in each year. (Penal Code § 905.) 3)Provides that when the grand jury is impaneled and sworn, it shall be charged by the court and the court shall give the SB 227 Page 2 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).) 4)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.) 5)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.) 6)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).) 7)States that a grand jury shall inquire into the condition and management of the public prisons within the county. (Penal Code § 919(b).) 8)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 prohibits 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. Comments 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 SB 227 Page 3 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. 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. Effect of this Legislation. This legislation prohibits 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 SB 227 Page 4 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: 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.) FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified4/24/15) SB 227 Page 5 California Attorneys for Criminal Justice California Public Defenders Association California State Conference of the National Association for the Advancement of Colored People Friends Committee of Legislation of California Two Individuals OPPOSITION: (Verified4/24/15) California District Attorneys Association ARGUMENTS IN SUPPORT: The California State Conference of the National Association for the Advancement of Colored People states in support: The highly profiled deaths of Michael Brown and Eric Garner during the summer of 2014 have created a national debate on the effectiveness of grand juries. In both cases, grand juries chose not to indict the officers involved after local prosecutors were in charge of presenting the case. Ultimately, the convening of the grand juries in these cases has provided no justice for the deaths of Eric Garner and Michael Brown. In high profile cases in which an officer uses excessive or deadly force, local prosecutors face a predicament. If they do not choose to file charges against the officers, they risk the disapproval and criticism of the community. Conversely, if the local prosecutor does decide to press charges, they jeopardize their relationship with law enforcement and their unions. The option to proceed with a criminal grand jury exonerates the prosecutor of their duties and allows them to use the grand jury as a pawn for political cover. A large portion of prosecutors are experienced trial lawyers that are capable of indicting any offender. Prosecutors indict every single day in the state of California and across the nation without the need for a SB 227 Page 6 grand jury. Prohibiting criminal grand juries in cases where law enforcement has used excessive or deadly force increases transparency and accountability. SB 227 is great policy in that it would establish trust between the community, law enforcement and the justice system. SB 227 also facilitates the prosecutor's ability of fully participate in the judicial process so that true justice can be served. ARGUMENTS IN OPPOSITION: The California District Attorneys Association states: The grand jury system has been the subject of intense national scrutiny over the last several months, particularly after grand juries failed to return indictments in high-profile cases against police officers in Ferguson, Missouri and Staten Island, New York. Despite the calls from many critics to "fix" the grand jury system, it's important to understand the rules operating in California grand juries, and consider other alternatives to the outright elimination of the grand jury as an option for a particular type of offense. The California criminal grand jury is decidedly different and amazingly fairer than its federal counterpart and that of many other states. First, under PC 939.6(c), the California grand jury does not allow for hearsay evidence, with very limited exceptions. Even more importantly, under PC 939.71, California prosecutors have a legal obligation to present known exculpatory evidence at the grand jury or suffer a case dismissal. Neither of these limitations on prosecutorial power and control are present in the federal grand jury or most other state grand juries. Thus, California grand juries offer a fuller seeking of the truth for all sides - by live testimony - than the often "assembly-line" grand juries found elsewhere. While there may be fundamental deficiencies in the grand jury systems of other states, we do not believe that those deficiencies exist in California to justify the outright SB 227 Page 7 prohibition of criminal grand juries in fatal officer-involved shootings. One of the primary criticisms of the grand jury is the lack of transparency regarding what happens inside the courtroom. PC 938.1 requires that if an indictment is returned, a transcript of the grand jury proceedings be prepared and delivered to the prosecution and defense, and then opened to the public within 10 days, unless a court orders otherwise. While in Ferguson, the proceedings were transcribed and presented to the public, in California (and New York), the law prevents the transcript from being released if there is no indictment. Perhaps a more moderate approach that would still provide more transparency would be to modify PC 938.1 to allow for preparation and public disclosure of grand jury transcripts in law enforcement deadly force cases, at least where the civilian victim is unarmed. We would welcome the opportunity to discuss this alternative, or offer language to that effect. Prepared by:Jessica Devencenzi / PUB. S. / 5/6/15 17:14:44 **** END ****