In a post last year on grand jury secrecy, I wrote about how the state of California had banned the use of grand jury proceedings in cases involving the use of deadly force by police officers. The California state constitution provides that all felony cases shall be prosecuted by either grand jury indictment or by an information following a probable cause hearing before a magistrate. Which method to use is generally left up to the district attorney.
But in the wake of several controversial cases nationwide involving police use of deadly force, California legislators concluded that the secrecy of grand jury proceedings contributed to an atmosphere of suspicion surrounding such cases. They argued that the outcomes of grand jury investigations “can seem unfair or inexplicable” because the secret proceedings lack “transparency and accountability.” They concluded that, due to the intense public interest in and concern about cases involving the police, more openness was necessary. Accordingly, they amended the California Penal Code to prohibit the use of a grand jury to investigate any case involving the use of deadly force by a law enforcement officer. As a result, such cases could be charged only via a public hearing before a magistrate.
In that earlier post, I argued that this legislation was misguided and would likely make it more difficult to conduct fair investigations of cases involving police officers. As the California legislature noted, such cases often involve intense public scrutiny and interest. Whether they support the prosecution or the defense, witnesses in those cases may face tremendous public pressure related to their testimony. Grand jury secrecy allows the witnesses in such high-profile investigations to testify truthfully without fear of becoming the target of a vitriolic social media campaign or finding protestors on their front lawn. The grand jury proceeding provides a confidential forum where representatives of the community — the grand jurors themselves — can explore what happened largely free from the political pressure and social passions that may surround these cases.
The California legislation took effect on January 1, 2016 and was immediately challenged by a group of district attorneys led by Vern Pierson, the DA for El Dorado County. They argued that the law was unconstitutional and inhibited their ability to do their jobs effectively. This week a California Court of Appeals ruled in their favor and held that the legislation violated the California constitution.
The court noted that the law was the “first legislative effort in 167 years to constrict the grand jury’s power under the Constitution to exercise its power of indictment.” The state constitution provides for the potential use of the grand jury in all felonies, and the legislature was not free simply to disregard this mandate for a particular category of cases. If the legislature had that power, the court reasoned, the logical implication would be that it could abolish grand juries altogether, which would plainly conflict with the constitutional mandate.
The court noted that if the legislature wanted to restrict the use of grand juries, it was not powerless. It could pursue a constitutional amendment to alter the current language providing for the option of a grand jury investigation in all felony cases. It could also follow the “less cumbersome route” of modifying the rules of grand jury secrecy, which are not constitutionally mandated, to provide for more openness and public disclosure in grand jury investigations. But given the constitutional language, the legislature was not free simply to ban the use of grand jury proceedings altogether for a particular class of cases.
This is a good result for the people of California. As the prosecutors who challenged the law recognized, they are more likely to achieve a just result in police investigations if they are able to utilize the grand jury and the safeguards that it provides. The irony of the California legislation was always that it potentially sacrificed justice on the altar of transparency.
The opinion is narrow; it focuses only on the fact that the legislation was inconsistent with the state constitution. The court does not discuss the benefits of secret grand jury proceedings, particularly in high-profile cases, and why the legislation may have been a bad idea. That’s understandable, but unfortunate. It would have been nice to see a judicial recognition and discussion of how grand jury proceedings can best serve the interests of justice by providing a dispassionate forum to investigate controversial cases.
The concern now has to be that the legislature will follow the court’s suggestion and pass a law to limit or abrogate grand jury secrecy in police cases, or perhaps in all cases. But secrecy is a fundamental characteristic of grand jury proceedings and provides a number of important benefits. Hopefully cooler heads will prevail and the legislature will recognize that the solution to concerns about the police and use of deadly force is not to start tinkering with the essential nature of the ancient institution of the grand jury.
The case is The People ex rel. Vern Pierson v. The Superior Court of El Dorado County, CA Court of Appeal, Third Appellate District, No. C081603 (Jan. 10, 2017). (Click here to download the opinion.) Hat tip to Patrick O’Toole, a district attorney in California, who was involved in the case from the beginning, co-argued it in the California Appeals Court, and kept me updated on its progress.
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