BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 227


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          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