Jury Again Urges Limit to Preliminary Hearings : Backs Constitutional Change to Send Most Indicted Defendants Directly to Trial

The Orange County Grand Jury on Thursday renewed its long-standing call for a constitutional amendment that would strip most defendants indicted on criminal charges of their rights to preliminary hearings and would send them directly to trial.

Thomas J. Kehoe, the grand jury foreman, said the panel was urging the Board of Supervisors to support a change in the state Constitution proposed by Sen. Ed Davis (R-Chatsworth) that would negate a 1978 California Supreme Court ruling.

High Court Decision

The high court decision gave defendants in criminal cases the right to a preliminary hearing even if they had been indicted by a grand jury. Previously, the right to a preliminary hearing had been limited to suspects held on charges filed by prosecutors.

Kehoe said that without the decision Los Angeles County would have been spared the expense of a preliminary hearing for the seven defendants accused of molesting students at the McMartin Preschool in Manhattan Beach.

“The McMartin hearing has now spanned nine months of time, over $2 million of taxpayers’ money, the public exposure and cross-examination of many child witnesses and this preliminary hearing may still be going on six to 12 months from now,” the grand jury said in its report.

The panel said the Orange County district attorney’s office reported that a partial list of relatively lengthy preliminary hearings in Orange County in the last three years showed court testimony in each of seven hearings consumed from 15 to 40 days, while the grand jury would typically take one to three days to process a case.

The report said that if the cases totaled 178 days of testimony, at the average cost of $4,000 per day per courtroom, the costs to the taxpayer were about $700,000.

The purpose of a preliminary hearing is to determine if a crime has been committed and enough evidence exists to hold a defendant for trial, which are essentially the same findings a grand jury makes when it issues an indictment.

Juries Viewed as Tools

Grand juries have frequently been criticized by defense attorneys as tools of prosecutors. Witnesses are not allowed to be accompanied by lawyers when appearing before a grand jury and cross-examination is not allowed.

“There is no question the accused does not have the same kind of protection as having a lawyer sitting next to him, cross-examining witnesses,” Kehoe said at a press conference. But he said California law provided sufficient protection of a defendant’s rights without guaranteeing a preliminary hearing.

Since the 1978 Supreme Court ruling, known as the Hawkins decision, prosecutors have generally bypassed grand juries because it was a duplication of their effort. As a result, grand juries spend their time largely investigating county government and reporting on their findings.

Kehoe said that when he served as a grand juror in 1965-66, the panel returned more than 30 criminal indictments. So far this year, he said, it has returned one.

Before the Hawkins decision, defendants who were indicted were occasionally granted preliminary hearings when a lawyer contended there had been insufficient evidence to return the indictment.

Kehoe said that although only 3% or 4% of felonies committed in the state were brought to county grand juries for indictments before the Hawkins decision, the panels were valuable in considering cases involving several defendants, drug rings or child victims. Kehoe said the children were spared the ordeal of testifying at both a preliminary hearing, which is public, and the trial.

The 1979-80 county grand jury issued the same call for a constitutional amendment as was proposed Thursday. The current grand jury said it was not optimistic that its appeal would be heeded.