Capizzi Was Correct to Curb Grand Jury : Mixing Civil, Criminal Inquiries Invites Trouble

Several members of the Orange County Grand Jury that brought charges against county officials in connection with the bankruptcy have told of feeling “intimidated” by Dist. Atty. Michael R. Capizzi. But from the evidence made public so far, Capizzi’s dealings with the panel were understandable and correct.

The 19-member grand jury extended what was to have been a one-year term of office an additional six months to handle bankruptcy matters. Members deserve credit for that. But several panelists said that when they requested an independent counsel to help in their civil investigation of the largest municipal bankruptcy in history, Capizzi leaned on them to drop the idea because he wanted them to consider only criminal cases.

The jurors said Capizzi and his deputies threatened to impanel a second grand jury to hear the criminal cases if the panel pursued its own civil investigation. The jurors eventually resolved the matter by continuing to consider only criminal charges.

Assistant Dist. Atty. Brent Romney had a plausible explanation for his office’s reluctance to have one grand jury handle both criminal and civil investigations: a possible “taint” on criminal charges. Romney said having one panel conduct two types of inquiries could “jeopardize potential indictments.”

That is a valid concern, since evidence uncovered in the grand jury’s role as civic watchdog could, if used as the basis for a criminal complaint, raise legal problems. The grand jury, which earlier had indicted former Assistant Treasurer Matthew Raabe, last month delivered a criminal indictment against former Budget Director Ronald S. Rubino and civil willful misconduct charges against Supervisors Roger R. Stanton and William G. Steiner and Auditor-Controller Steve E. Lewis. The prosecutors contend the charges against Stanton, Steiner and Lewis are criminal; defense lawyers and county counsel contend they are civil charges.

In most criminal cases involving federal or local grand juries, prosecutors present their facts and urge indictments of defendants. In very rare instances, “runaway” grand juries try to do more than a prosecutor wants.

Although such panels are the exception, one Orange County grand jury did cross Capizzi recently. The panel investigating a deputy’s fatal shooting of another sheriff’s deputy while both were on duty on Christmas Day more than two years ago rejected the recommendation of Capizzi’s office that it charge the deputy with involuntary manslaughter due to “gross negligence.” No charges were filed.

Since the passage of Proposition 115 in 1990, prosecutors have been able to obtain criminal indictments from a grand jury without having to follow up with a preliminary hearing, a process that essentially duplicates the grand jury proceeding. Yet it remains rare for Orange County grand juries to consider criminal cases.

The grand juries’ role as civic watchdogs has remained paramount. That function is vital, because there are few practical alternatives. From the problem of too many special districts to the dangers of overcrowding in local jails, Orange County grand juries have played an important, needed role as an independent institution keeping tabs on how government functions.

The county’s bankruptcy was an exceptional event and spawned several commissions to consider matters like charter reform and a sales tax. But such commissions have limited lives; it is up to the grand jury to do the daily probing of government.