BILL ANALYSIS Ó
SB 227
Page 1
Date of Hearing: June 16, 2015
Counsel: David Billingsley
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
SB
227 (Mitchell) - As Amended April 27, 2015
SUMMARY: Prohibits a grand jury from inquiring into an offense
or misconduct 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 by the peace officer, unless the offense
was declared to the grand jury by one of its members.
EXISTING LAW:
1)Provides that one or more grand juries shall be drawn and
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summoned at least once per year in each county. (Cal. Const.
Art. I, Section 23.)
2)Requires that in all counties there shall be at least one
grand jury drawn and impaneled in each year. (Pen. 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
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. (Pen. Code, § 914, subd. (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. (Pen. 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. (Pen. 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. (Pen. Code, § 919, subd. (a).)
7)States that a grand jury shall inquire into the condition and
management of the public prisons within the county. (Pen.
Code, § 919, subd. (b).)
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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. (Pen. Code, § 919, subd. (c).)
9)Provides that whenever the Attorney General considers that the
public interest requires, he or she may, with or without the
concurrence of the district attorney, direct the grand jury to
convene for the investigation and consideration of those
matters of a criminal nature that he or she desires to submit
to it. He or she may take full charge of the presentation of
the matters to the grand jury, issue subpoenas, prepare
indictments, and do all other things incident thereto to the
same extent as the district attorney may do. (Pen. Code, 923,
subd. (a).)
10)Specifies that every grand juror who, except when required by
a court, willfully discloses any evidence adduced before the
grand jury, or anything which he himself or any other member
of the grand jury has said, or in what manner he or she or any
other grand juror has voted on a matter before them, is guilty
of a misdemeanor. (Pen. Code, § 914.1, subd. (a).)
11)Allows the district attorney of the county to at all times
appear before the grand jury for the purpose of giving
information or advice relative to any matter cognizable by the
grand jury, and may interrogate witnesses before the grand
jury whenever he thinks it necessary. When a charge against or
involving the district attorney, or anyone employed by or
connected with the office of the district attorney, is being
investigated by the grand jury, such district attorney, or
assistant district attorney, or deputy district attorney, or
all or anyone or more of them, shall not be allowed to be
present before such grand jury when such charge is being
investigated, in an official capacity. (Pen. Code, § 935.)
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12)States that except as specified, the grand jury shall not
receive any evidence except that which would be admissible
over objection at the trial of a criminal action, but the fact
that evidence that would have been excluded at trial was
received by the grand jury does not render the indictment void
where sufficient competent evidence to support the indictment
was received by the grand jury. (Pen. Code, § 939.6, subd.
(b).)
13)Allows the evidence to support the indictment to be based in
whole or in part upon the sworn testimony of a law enforcement
officer relating the statement of a declarant made out of
court and offered for the truth of the matter asserted, as
long as the officer testifying as to a hearsay statement has
either five years of law enforcement experience or have
completed a training course certified by the Commission on
Peace Officer Standards and Training that includes training in
the investigation and reporting of cases and testifying at
preliminary hearings. (Pen. Code, § 939.6, subd. (c).)
14)States that if an indictment has been found or accusation
presented against a defendant, the court reporter shall
certify and deliver to the clerk of the superior court a
transcript of the grand jury proceedings for the defendant(s).
The reporter shall complete the certification and delivery
within 10 days after the indictment has been found or the
accusation presented unless the court for good cause makes an
order extending the time. The time shall not be extended more
than 20 days. (Pen. Code, § 938.1, subd. (a).)
15)The transcript shall not be open to the public until 10 days
after its delivery to the defendant or the defendant's
attorney. Thereafter the transcript shall be open to the
public unless the court orders otherwise on its own motion or
on motion of a party pending a determination as to whether all
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or part of the transcript should be sealed. If the court
determines that there is a reasonable likelihood that making
all or any part of the transcript public may prejudice a
defendant's right to a fair and impartial trial, that part of
the transcript shall be sealed until the defendant's trial has
been completed. (Pen. Code, § 938.1, subd. (b).)
16)Allows the grand jury acting through its foreman and the
attorney general or the district attorney to make a joint
written request for public sessions of the grand jury. If the
court finds that the subject matter of the investigation
affects the general public welfare, involving the alleged
corruption, misfeasance, or malfeasance in office or
dereliction of duty of public officials or employees or of any
person allegedly acting in conjunction or conspiracy with such
officials or employees in such alleged acts, the court or
judge may make an order directing the grand jury to conduct
its investigation in a session or sessions open to the public.
(Pen. Code, § 939.1, subd. (a).)
17)States that an indictment cannot be found without concurrence
of at least 14 grand jurors in a county in which the required
number of members of the grand jury is 23, at least eight
grand jurors in a county in which the required number of
members is 11, and at least 12 grand jurors in all other
counties. When so found it shall be endorsed, "A true bill,"
and the endorsement shall be signed by the foreman of the
grand jury. (Pen. Code, § 940.)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "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
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proceedings. Transparency and accountability are key to
establishing and keeping the trust of the public."
2)California Has Two Procedures to Make Probable Cause
Determinations in Felony Cases; Preliminary Hearings and Grand
Juries: The prosecution begins a felony case either by filing
a grand jury indictment in the trial court or by filing a
complaint with a magistrate. (Cal. Const., art. I, section
14.) If a complaint is filed, a preliminary hearing must be
held before a magistrate to endure that there is enough
evidence to hold the defendant to answer in the trial court.
(Pen. Code, § 872.) When a grand jury indictment is filed,
there is no right to a preliminary hearing. Bowens v. Superior
Court (1991) 1 Cal 4th 36.
The vast majority of cases proceed by preliminary hearing.
Preliminary hearings afford the accused of a public hearing
before a neutral magistrate and defense counsel. Grand juries
are not adversarial in nature, meaning the defense attorney
and the accused are not present, and they are held in secret.
Additionally, when grand juries are utilized, witnesses are
not subject to cross-examination and evidence presented is not
subject to objection on issues of admissibility
At a preliminary hearing, the prosecution must present
sufficient evidence to convince the magistrate that probable
cause exists to believe that a crime has been committed and
that the defendant committed it. (Pen. Code §§ 872 and 995.)
If the prosecution shows probable cause, the magistrate will
hold the defendant to answer to the charge in the trial court.
The prosecution must then file an information in the court
within 15 days. (Pen. Code §§ 739 and 1382(a)(1).)
3)Secrecy in the Grand Jury Process: A criminal grand jury
proceeding is conducted in complete secrecy. The only persons
present other than the grand jury are District Attorney
representatives, a court reporter, who is sworn to secrecy,
and witnesses, who testify one at a time. The witnesses are
not allowed to have an attorney present, but may consult with
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an attorney outside the hearing room when the witness deems it
necessary to seek legal advice. Since there are no attorneys
present other than the prosecutor, there is no cross
examination. All testimony is taken under oath. The jury
foreperson presides and one of the jurors takes the role of a
court clerk by calling witnesses, keeping track of evidence
and performing other similar duties. Jurors may ask questions,
but they are written and submitted to the prosecutor
conducting the hearing to determine that they meet the rules
of evidence. The prosecutor is required to introduce
exculpatory evidence, which is evidence that might mitigate
the likelihood of an indictment; in other words, evidence in
favor of the accused. An indictment, endorsed as a "true
bill," may be submitted to the court only if at least a
"supermajority" of grand jurors concurs. (The California Grand
Jury System (2014), pp. 10-11.)
While the grand jury hearing itself is secret, existing law does
provide that that a transcript of the grand jury hearing be
made available to the public. If there is a criminal
indictment, a transcript of the grand jury hearing must be
provided to the court within 10 days. (Pen. Code, § 938.1,
subd. (a).) That time frame can be extended by a judge for up
to 20 days based on good cause. The transcript of the grand
jury hearing will be open to the public 10 days after it has
been provided to the defendant, or the defendant's attorney,
except under specified circumstances. (Pen. Code, § 938, subd.
(b).)
4)Prevalence of Grand Juries in Criminal Cases: The California
Grand Jury System (2014), p. 6., states that based on their
review "four states require a grand jury indictment for all
crimes; 14 states and the District of Columbia require grand
jury indictments for all felonies; six states mandate grand
jury indictment only for capital crimes; 25 states, including
California, make grand jury indictments optional; and in a
single state, Pennsylvania, the grand jury lacks the power to
indict."
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5)Judge LaDoris Cordell Calls for Abolishing the Use of Grand
Juries: In the wake of the deaths of Eric Garner and Michael
Brown, Judge LaDoris 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
Garner cases are examples of how prosecutors
manipulate the grand jury process.
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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
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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.
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.
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(Grand Juries Should be Abolished, LaDoris Hazard Cordell,
December 9, 2014,
http://www.slate.com/articles/news_and_politics/jurisprudence/2
014/12/abolish_grand_juries_justice_for_eric_garner_and_michael
_brown.single.html?print.)
6)Argument in Support: According to the Friends Committee on
Legislation of California, "Criminal grand jury proceedings
differ from traditional trials in numerous ways. There are no
defense attorneys or judges. The rules of evidence do not
apply and there are no cross examinations of witnesses.
Moreover, grand jury proceedings lack transparency.
"Recent events in Ferguson, Missouri and New York City led to
the deaths of Michael Brown and Eric Garner at the hands of
the police. In both instances, law enforcement officers were
not indicted by grand juries. The failure to hold anyone
accountable undermines public respect for the law. People are
more likely to cooperate with law enforcement and to obey the
law when they perceive that the law is applied equally fairly.
That the decisions on whether to try the officers involved
were shrouded in secrecy undermines confidence in our legal
system and polarizes entire communities.
"Given that in today's world of instant news where virtually
anyone can record the police in their performance of duties
and post the video on line, secrecy in grand jury proceedings
has become obsolete. There cannot be dual systems of justice,
one for ordinary citizens and one for law enforcement. By
definition that is the opposite of justice. When police
misconduct may have resulted in the death of a civilian, the
public has a right to demand that the allegation is taken
seriously and is thoroughly investigated in a manner that is
fair, objective and transparent."
7)Argument in Opposition: According to the California District
Attorneys Association, "While the use of criminal grand jury
is relatively rare in cases of officer-involved shootings in
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California, we disagree on principle with the idea of taking
away an option that can be an appropriate and useful
prosecutorial tool in certain situations.
"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 nay critics to 'fix'
the grand jury system, it 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
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 the opened to the public within
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10 days, unless a court orders otherwise. While in Ferguson,
the proceedings were transcribed and presented to the public,
in California and (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."
8)Prior Legislation:
a) SB 1474 (Hancock), Chapter 568, Statutes of 2012,
allowed the Attorney General to convene a statewide grand
jury in cases of theft or fraud where the same defendant or
defendants committed the offense in multiple counties.
b) SB 391 (Gaines), of the 2011-2012 Legislative Session,
would have required the board to deny parole for inmates
serving indeterminate life terms unless the inmate proved
that consideration of the public safety does not require a
more lengthy period of incarceration. SB 391 died in
Senate Public Safety.
c) SB 1168 (Cedillo), of the 2009-2010 Legislative
Session, would have permitted the city attorneys of
specified municipalities within the County of Los Angeles
to impanel an additional grand jury for the purpose of
investigating misdemeanor offenses. SB 1168 failed in
Assembly Public Safety.
d) AB 1906 (Cook), Chapter 87, Statutes of 2010, authorized
the Presiding Judge of the Superior Court of the County of
San Bernardino, or the judge appointed by the presiding
judge to supervise the grand jury, to impanel an additional
civil grand jury, for a term to be determined by the
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presiding or supervising judge, in accordance with
specified procedures.
e) SB 796 (Runner), Chapter 82, Statutes of 2007,
authorized the Presiding Judge of the Superior Court of the
County of Los Angeles, or the judge appointed by the
presiding judge to supervise the grand jury, to instead
impanel up to 2 additional grand juries, in accordance with
specified procedures.
REGISTERED SUPPORT / OPPOSITION:
Support
California Attorneys for Criminal Justice
California Public Defenders Association
California State Conference of NAACP
Criminal Trial Lawyers Association of Northern California
Free Indeed Reentry Project
Friends Committee on Legislation of California
Los Angeles Urban League
Office of the Independent Police Auditor, City of San Jose
San Francisco Public Defender
Opposition
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California District Attorneys Association
California Grand Jurors' Association
California Police Chiefs Association
Analysis Prepared by:David Billingsley / PUB. S. / (916)
319-3744