Grand Juror Who Pressed for Probe of Mitchelson Quits

A key Los Angeles County grand juror who complained publicly about a possible obstruction of the panel’s efforts to investigate a rape complaint against palimony lawyer Marvin Mitchelson was threatened with contempt of court this week by a judge and resigned in protest.

Jack E. Goertzen, presiding judge of Los Angeles County Superior Court, told Ralph Howe, the grand jury’s foreman pro tem, that he might face a contempt of court charge and removal from the grand jury if he refused to leave the jury’s chambers whenever the subject of investigating Mitchelson came up.

Goertzen explained in an interview that he was relying on “the inherent authority of the presiding judge to run his own judges” and require them to remove themselves from cases that they have spoken out on to avoid even the appearance of impropriety.

‘Potential Litigants’

“If you have judges that . . . are announcing that potential litigants . . . are engaging in possible criminal activity, you would not want that judge to sit on a matter involving that litigant,” Goertzen said.

He likened grand jurors to judges, saying, “The grand jury sits as a kind of a judicial investigative body.”

“We never felt Mr. Howe was prejudiced,” he added. “We said there’s an appearance of it. . . . And that’s the usual basis of a recusal order.”

Howe responded by resigning from the panel Tuesday, declaring that Goertzen’s action “appears to be without authority” and illustrates the impotence of the grand jury, an ostensibly independent body.

Howe said he was distressed by “the principle of somebody putting the muscle on me from outside (the grand jury) to quit pursuing trying to get an investigation.”

As chairman of the panel’s Criminal Justice Committee, Howe, a retired Downey fire captain, had spearheaded a so far unsuccessful, months-long grand jury effort to obtain the services of an attorney to conduct an investigation into an allegation that Mitchelson raped a client.

A majority of the grand jury, which is composed of 23 lay people appointed by Superior Court judges to serve for a year, asked the district attorney’s office and the attorney general’s office to provide it with a lawyer.

Rape Allegation

But the district attorney’s office, which had previously concluded on its own that the rape allegation was without merit, declined.

The attorney general’s office still has not answered the grand jury’s request, made in a May 18 letter.

The grand jury’s term expires June 30.

Legal experts, asked to comment about the claim of inherent authority, said it is a common concept that is being applied in an uncommon situation.

“Every judge has inherent authority, which is the authority to make orders . . . so that he can perform the duties of his office,” said Richard Schauer, a former Los Angeles County presiding judge who is now in private practice as an attorney. Schauer cited as an example the authority of a judge to order an unwilling Board of Supervisors to provide him with the staff needed to run his court.

“This, of course, is an unusual circumstance,” Schauer said, although not unprecedented. “Years ago, there was a grand jury that was simply removed in its entirety because the presiding judge believed they had strayed far beyond their scope.”

Dickran Tevrizian, a former Superior Court judge who is now a U.S. District Court judge, noted simply: “The Superior Court puts (the grand jury) together. The Superior Court can take it apart.”

Controversy Begins

The controversy began May 14, when Howe said in an interview that he believed state and local prosecutors and a judge may have been improperly obstructing the grand jury’s efforts to investigate the rape complaint by refusing to provide it with an attorney.

The next day, the district attorney’s office, which normally supplies an attorney for the grand jury, petitioned Goertzen to order Howe to remove himself from any grand jury cases involving its office. Goertzen agreed. There was no mention of the Mitchelson case in the order.

But a week later, Goertzen withdrew his order when Howe promised to voluntarily remove himself from any case involving the district attorney’s office and from the Mitchelson case, should the grand jury succeed in getting a lawyer to investigate it.

Howe, however, said he did not promise to stop trying to get the grand jury a lawyer to look into the Mitchelson matter.

During a regular grand jury meeting last week, “an aspect” of the Mitchelson matter, which Howe would not specify, was to be discussed.

Howe said jury foreman Edward Roseman asked him to leave, and he declined.

Visited Judge

He said he, Roseman and some other grand jurors visited Goertzen to clarify the situation.

Howe said Goertzen made it plain that he expected Howe to physically leave the grand jury room whenever the subject of Mitchelson was raised.

“I said, ‘Put the order back in effect, because that’s not what I agreed to do,’ ” Howe said. “So he put his order back into effect; then he added (a ban on Howe’s participation in any Mitchelson discussions) to his order.”

Goertzen acknowledged that he had expanded his order, but he said he had meant all along for Howe to absent himself even in informal discussions on the Mitchelson matter.

“What I told him is once a judge recuses himself from a case . . . it would not be fair for that judge to go see another judge and say, ‘By the way, here’s the way I feel about this case. . . .’ The grand jury discusses things openly. . . . If he’s put himself in a box where he’s recused himself, he shouldn’t be discussing it informally or formally with these grand jurors.”

‘Outside Factors’

Howe said he believes that the grand jury has “lost its independence when outside factors are able to dictate what’s going on.”

He said he resigned rather than fight the judge because he did not want to spend his own money to pay for a lawyer.

“The whole thing illustrates the dire need for independent legal counsel for the grand jury,” he said.

But Goertzen replied that there are limits to the grand jury’s independence.

“I’d hate to have a judge without any limits,” he said. “I’d hate to think there’s anybody who doesn’t have any limits. It would be kind of scary.”