BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        SB 227|
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                                   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  








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            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  








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               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  








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               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)








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          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  








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               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  








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               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


                                          


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