D.A. Sees Grand Jury as Newest Crime Weapon : Prosecution: Proposition 115 can allow indictments by the panel to stand without a preliminary hearing. Jurors can now expect to hear many more cases.

Orange County Dist. Atty. Michael R. Capizzi smiles when he talks about a recent addition to the county’s arsenal in its fight against crime.

It will help put gang killers, rapists and corrupt politicians behind bars, and will ease overcrowded criminal dockets and save money as well, Capizzi and other prosecutors say.

The weapon is the grand jury. And while the institution has been around for hundreds of years as one of the hallmarks of the American and British legal systems, the grand jury in California fell into disuse for the past decade as a result of court rulings.

Now, with passage of a court reform initiative in June, Capizzi said the grand jury has been fully restored as an independent and powerful tool of criminal investigation.

“Proposition 115 is a major step in taking California out of ‘Bird’ land into which it had drifted and brought it back into a closer association with the federal system and other states which use the grand jury system effectively,” Capizzi said last week.

He was referring to former California Chief Justice Rose Elizabeth Bird and the court’s 1978 decision giving defendants indicted by grand juries the right to a subsequent hearing to determine if a full trial is warranted.

Those preliminary hearings, involving prosecutors, defense attorneys and witnesses, are often similar to the full-blown criminal trials that follow. In order to avoid, in effect, staging two trials in each case, prosecutors have largely discontinued the use of grand juries in criminal cases.

In 1978, nearly 700 criminal indictments were issued by grand juries in California, according to Gerald Uelmen, dean of Santa Clara University’s School of Law. That number had dropped to the single digits in the late 1980s and Uelmen predicted that about 30 to 40 indictments would be issued this year.

Now, under the terms of Proposition 115, the new court reform initiative, preliminary hearings can be eliminated in cases where a grand jury has issued an indictment.

Chief among prosecutors’ criticisms of preliminary hearings has been that defense attorneys used the system to beat down and intimidate key witnesses and crime victims, especially victims of sexual assault.

“I cannot tell you how many rape victims have told me that they did not want to go through with a trial after having first been through a preliminary hearing,” said Sterling Norris, acting chief deputy of special trials for the Los Angeles County district attorney’s office.

Defense attorneys have been using the hearings as a “whipping place” for crime victims because the hearings are simply meant to determine whether there is cause to proceed to trial and do not involve the presence of juries, Norris said.

“Even though I tell them (crime victims) that they would not be put through that ordeal in front of a jury, they say they would not want to go through that again,” Norris said. “It has become a field for defense attorneys to castigate rape victims. Proposition 115 makes it much more of a truth-seeking proceeding again.”

But an attorney who is preparing a challenge to other provisions of the proposition before the state Supreme Court, which is scheduled in two weeks, said true preliminary hearings can actually provide incentives for criminals to plead guilty, speeding the criminal justice process.

San Francisco attorney David Goodwin said that in preliminary hearings, where prosecutors present live witnesses for questioning, defendants can be convinced that strong cases have been prepared against them and will enter pleas of guilty.

On the other hand, he said the hearings also allow the prosecutors an opportunity in some cases “to realize his witnesses are turkeys.”

“It does take more time for attorneys,” Goodwin said. “But it cuts both ways. What I understand is that it (the proposition) could reduce the guilty plea rate and that could result in chaos.”

Capizzi and Norris predict that a steady volume of criminal cases will now be routed through the grand jury for consideration and further investigation.

They said grand jury consideration of their cases can cut weeks and, in some cases, months from pretrial proceedings in post-indictment preliminary hearings.

Orange County Grand Jury Foreman Grant Baldwin said prosecutors have already notified his panel that it should be prepared to consider “significantly more” criminal cases because of Proposition 115.

A grand jury, typically composed of 19 citizens (23 in Los Angeles County) who sit for a term of one year, sits in secret. No attorneys except prosecutors are present. With no cross-examination of witnesses, as is allowed in preliminary hearings, cases routed through the grand jury move more quickly to trial, prosecutors say.

In the context of a criminal case, grand juries traditionally have served as overseer of the work of prosecutors. Grand juries have the power to hear evidence of crimes, and decide whether prosecutors had gathered enough evidence to justify criminal charges.

Capizzi said he has not yet tested the powers of the grand jury under Proposition 115, but he said Orange County has spent thousands of dollars in taxpayers’ money in recent prolonged preliminary hearings discussing matters that could have been settled in the grand jury in a fraction of the time.

Specifically, he pointed to the 14 months Orange County prosecutors spent in 1989 and part of this year debating conspiracy and bid-rigging charges involving the Orange County Unified School District.

In the grand jury, he said the matter could have been ready for trial in a matter of a few weeks.

Norris estimated that a pending gang-related case in Los Angeles County, involving a number of defendants, would take seven weeks to present in a preliminary hearing but only a matter of hours in the grand jury.

“We determined that preliminary hearings were wasteful and involved” duplication of effort, said Capizzi, who worked as the Orange County co-chairman in the effort to pass the proposition. “Why go through the expense and judicial hoops? Why spend countless hours, days, weeks and months going through these hoops? I’ve been working for 10 years to eliminate the need for the post-indictment preliminary hearing.”

While prosecutors like Capizzi extol the restoration of the grand jury system, others claim the volume of criminal cases considered by the panels will not reach levels seen before the 1978 Supreme Court ruling.

“What I’m picking up is a lot of talk about resisting efforts to have district attorneys taking over criminal indictments,” Uelmen said. “I think they (prosecutors) will be very selective about what kinds of cases they take to the grand jury. I think they’ll take child abuse cases, capital cases and political corruption-type cases,” he said. Others have noted that such cases involving multiple defendants and or sensitive issues can be handled much easier in the quiet and secret grand jury setting.

“I thought Hawkins was a good decision because of the disparity in the treatment of defendants. I think we’ve kind of made a mistake (with Proposition 115). I don’t think it should be a tactical choice of whether a prosecutor goes for a grand jury or a preliminary hearing,” Uelmen said.

Uelmen was referring to the 1978 Supreme Court decision James Hawkins vs. Superior Court of San Francisco.

Whatever the result of Proposition 115, Capizzi believes that it will certainly make California’s grand jury system more compatible with the workings of grand juries in other states and those under federal jurisdiction.

In most states, grand juries enjoy wide investigative powers and are generally the most potent resource prosecutors can use to bring criminal charges.

Over the last decade, California grand juries have focused their work on their watchdog role over local government operations.