Court to Review Test of Powers of Grand Juries

The state Supreme Court on Wednesday blocked further proceedings in a Ventura fraud case in order to consider an unusual challenge by prosecutors to a controversial 1978 ruling limiting the power of grand juries.

The justices, in a brief order signed by Chief Justice Malcolm M. Lucas, delayed indefinitely a preliminary hearing scheduled Friday in the case of two Ventura men accused of bilking at least 22 persons of more than $1 million.

The delay will remain in effect until the court decides whether to take the rare action of stepping into the case to reconsider the validity of the 1978 decision by the court under then-Chief Justice Rose Elizabeth Bird.

In that ruling, the justices severely restricted the power of grand juries in criminal cases, ruling that felony defendants indicted by grand juries, like other defendants, were entitled to preliminary hearings to contest the charges against them before going to trial.

Equal Protection Guarantees

The court, in a case called Hawkins vs. Superior Court, said then that denying such hearings to indicted defendants violated the equal protection guarantees of the California Constitution. In contrast to preliminary hearings, there is no right to counsel, to present evidence or to confront accusers in grand jury proceedings--and grand juries thus have been criticized as virtually controlled by the prosecution.

Over the years, the 1978 ruling has been widely assailed by prosecutors, who see post-indictment preliminary hearings as costly and duplicative proceedings that can delay trials and place additional strains on witnesses for the prosecution.

Today, very few criminal indictments are returned by grand juries. In the vast majority of cases, charges are brought directly by prosecutors and are followed by preliminary hearings in which a judge determines whether there is sufficient evidence to warrant trial.

Removing the preliminary hearing requirement would enable prosecutors to make more use of grand juries for sensitive cases involving corruption, illegal drugs or cases where witnesses need protection, authorities say.

With the departure of Bird and two other liberal justices defeated in the November, 1986, election, there has been increasing support among prosecutors in the state for an attempt to get the new and more conservative court to overturn the Hawkins ruling. Efforts are also under way to circulate an initiative petition that among other things would invalidate the 1978 decision.

Wednesday’s action came in response to a petition to the court filed by Ventura County Dist. Atty. Michael D. Bradbury in a case against Charles Stephen Hodson and Robert Virgil Cole, who were to appear at the preliminary hearing Friday after being indicted by the county grand jury in November on multiple counts of grand theft and forgery.

Bradbury said the hearing would be time-consuming and duplicative, requiring the appearance of about 80 witnesses in proceedings that could last more than a month. He asked the court to exercise direct jurisdiction in the matter and to bar the preliminary hearing and declare the 1978 ruling unconstitutional.

The prosecutor said the state Constitution clearly gave authorities the option of seeking indictments through the grand jury or proceeding directly in court with a criminal complaint. He noted that only two other states--Oklahoma and Michigan--require post-indictment preliminary hearings and that since the Hawkins ruling was issued, no court in the 11 other states that have considered the issue has agreed with the California decision.

The order filed Wednesday, while not deciding the issue, was welcomed as a “positive sign” that the court intends to give serious consideration to overturning the Hawkins decision, Ventura County Deputy Dist. Atty. Michael Schwartz said.

“We have a more reasonable court now that may be much more willing to reconsider the Hawkins opinion,” Schwartz said. “That decision had the effect of stripping the grand jury of its power to bring criminal cases. It has caused unnecessary expense and delay, in that grand jury proceedings almost always take less time than preliminary hearings.”

Move Called ‘Absurd’

Attorneys for the two defendants in the case were not immediately available for comment. But in earlier proceedings in Ventura, Brian O’Neill of Santa Monica, the lawyer representing Cole, had labeled as “absurd” an attempt by Bradbury to have the 1978 ruling declared invalid by a Superior Court judge.

“The (prosecution’s) invitation to this court to overrule Hawkins is an invitation to lawlessness,” the attorney said in a brief filed with the Superior Court.

In the Hawkins decision, the justices had not eliminated the investigatory or indicting functions of grand juries but had simply ensured that indicted defendants would still have the constitutional protections of the preliminary hearing process, O’Neill said.