Grand Jury Exhibits Autonomy

The Ventura County Grand Jury that indicted Michael Dally for murder on Friday, three months after prosecutors first requested the charge, has already gained a reputation among courthouse lawyers and county officials as particularly independent and hardly a prosecutorial rubber stamp.

In fact, prosecutors had not taken a new criminal case to the grand jury in two months until they offered new evidence against Dally last week. And that void represented a rare period of inactivity for the secretive citizens’ watchdog panel that counts as a prime responsibility the hearing of criminal indictments.

Since gaining only mixed results from the grand jury in three high-profile murder cases in August and early September, the district attorney’s office had not referred another felony case to the 19-member panel until the flurry of activity that led to Dally’s indictment for kidnapping and murder late Friday.

Even with the recent second round of Dally testimony, the panel has heard only three murder cases over four months, contrasted with an average of nearly three grand jury indictments a month the past three years.

Prosecutors refused to discuss the performance of this grand jury in specific cases. But Dist Atty. Michael D. Bradbury said last week that the dearth of cases he has sent its way is not significant.

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“We have total confidence in the grand jury, and they will receive other cases for indictment,” Bradbury said. “It’s just a hiatus.”

But three weeks after the grand jury initially refused Bradbury’s August request to indict Dally along with his girlfriend, Diana Haun, for the slaying of Sherri Dally, prosecutors suddenly pulled a second murder case from the panel after two days of hearings.

They decided instead to take Michael Raymond Johnson, charged with the execution-style killing of Sheriff’s Deputy Peter Aguirre, before a judge this month in a more time-consuming preliminary hearing to determine whether there is enough evidence to justify a Superior Court trial.

Since grand jury proceedings are confidential, jury members would not discuss the Dally and Johnson cases--but defense attorneys said something unusual is going on with this grand jury.

“Dally wasn’t indicted [initially], and that was certainly different,” Public Defender Kenneth Clayman said. “It’s unusual in the grand jury context to not have everyone indicted.”

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In Ventura County, the grand jury has indicted in all but about one case per year in recent years.

And veteran Deputy Public Defender Todd Howeth, Johnson’s attorney, said he could not recall another case where grand jurors had heard substantial evidence only to abandon the proceeding.

Howeth asserts in court filings that he believes “the grand jury was never allowed to complete their independent assessment of the evidence” in the Johnson case, and that prosecutors may have improperly compelled the jury to quit the case. By law, the grand jury’s investigations are independent of the district attorney, though the district attorney advises the panel on legal matters and presents evidence to it.

Howeth requested a transcript of all discussions between prosecutors and grand jurors before the Johnson proceedings were canceled.

In the Johnson case or any other, Howeth said, it would be improper for prosecutors to pull the case from the grand jury because the district attorney wanted to file more changes than the jury seemed likely to sanction. Prosecutors did, in fact, add a kidnapping charge to their murder and rape case against Johnson after the grand jury hearings.

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Responding to Howeth, Deputy Dist. Atty. Michael Schwartz argued in court documents that the grand jury is by design a secret body where members’ comments are confidential, and that Howeth’s suspicions are not good reason to break “this heritage of secrecy.”

Superior Court Judge Steven Z. Perren has not ruled on the matter.

Developments in the Johnson and Dally cases are but two indicators that the 1996-97 grand jury, impaneled July 1, has a particularly aggressive and independent streak--and is hardly the rubber stamp critics insist grand juries have traditionally been in California.

Indeed, the California Supreme Court prohibited grand juries from hearing most criminal cases from 1978-1990 because the closed-door panels--from which defense attorneys are excluded--nearly always returned indictments requested by prosecutors. But under the 1990 “speedy trial” ballot initiative, prosecutors can again use grand juries to investigate a wide array of potential crimes.

The current Ventura County Grand Jury has been aggressive not only in criminal cases, but in its primary responsibility of investigating local government, officials say.

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A grand jury committee has already completed an audit of operations at the new Todd Road County Jail near Santa Paula and will issue a report soon, months before such panels usually release their first study.

“Grand juries run the gamut, from very bright and interested to where they take on the personality of a runaway train,” Sheriff Larry Carpenter said. “This one certainly has been high on the awareness scale. They took the time to be educated and seem to be a quick study.”

This group also seems more diverse in race, age and life experience than the usual grand jury, Public Defender Clayman said. Bradbury said the panel is “very bright and engaged. There seems to be a little more energy there.”

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The grand jurors themselves are proud they are not the usual panel of predominantly white and retired citizens who can afford to give up a year of time for the meager county stipend of $20 a day plus 31 cents a mile that jurors are paid.

The group is loaded with members who see themselves as leaders, grand jury foreman George J. Billinger said. Of the 30 most qualified grand jury applicants included in a drawing for the panel’s 19 slots, at least half said they would like to be the foreman, Billinger said.

In addition to half a dozen former administrators, the jury includes two auditors, a computer expert, a retired aerospace engineer, a former Port of Hueneme executive, two electrical engineers, a social worker, teacher, schools’ clerk, travel agent and a salesman. Two blacks are members, as is a Latino and an Asian American.

“People on this grand jury believe that this is an independent body and they intend to function that way,” said grand juror Dorothy Engel, past president of the county League of Women Voters. “This is a confident bunch. They’re not afraid to express opinions.”

Engel, also a grand juror five years ago, said this group is more business-oriented, has a higher educational level and ranges in age from 30 to about 75.

“I think that makes a difference,” she said. “This group is probably more flexible and willing to compromise. . . . We explain ourselves and people listen.”

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Billinger, a retired national marketing manager for a lighting company, said this grand jury is stocked with professionals and is not about to be pushed around by anyone, nor unduly influenced by prosecutors. “We’ve got too many egos [for that],” he said.

The grand jury has two members with prior experience--Engel and Nadine DeMoss. The day after their July 1 selection to the new panel--and after Billinger was chosen by Presiding Superior Court Judge Robert C. Bradley as foreman--the three met.

“We just rolled up our sleeves and got the chalk board out and laid out a game plan,” Billinger said. “This usually doesn’t happen until the fourth or fifth week. We got a jump-start.”

Which was a good thing, considering the task that lay before them in August.

For nine work days beginning Aug. 5, the grand jury reviewed evidence meant to show that Dally and Haun conspired to kill Ventura homemaker Sherri Dally, who was kidnapped May 6 and whose body was found 3 1/2 weeks later in a ravine north of Ventura.

Although the grand jurors had never heard a criminal case before, they sat through the complicated testimony of 57 witnesses that took 1,585 pages of transcription to recount and reviewed 120 exhibits.

Witnesses were questioned by Bradbury--who had not presented a case himself for 13 years--and by one of his chief deputies, Lela Henke-Dobroth.

Finally, despite pleas by prosecutors to indict both suspects, the grand jury held only Haun to answer a murder charge, finding the required probable cause that she had committed a crime. To indict, state law requires that grand jurors hold “a strong suspicion” of guilt. But the jurors are not supposed to find guilt or innocence, since that is left for the trial judge or jury.

“We’ve had quite a lesson in probable cause,” Engel said. “Anything after that is going to be easy.”

The grand jurors could not be reached for comment following Friday’s indictment of Dally to discuss the impact of the new evidence presented to them in the Dally case.

James Farley, attorney for Dally, said last week that he knew prosecutors were taking another run at getting the jurors to indict his client.

“But I have a feeling that this grand jury may be questioning the cases brought before them,” Farley said before Friday’s indictment. “And it’s about time. The grand jury is not supposed to be a rubber stamp. It’s supposed to be the body that stands between the government and the people the government wants to tread on.”

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In the days following their indictment of Haun, and non-indictment of Dally, the grand jury did indict murder suspect Alan Brett Holland in the shooting death of a 65-year-old woman at a Ventura shopping center.

But then the panel stopped short of indicting Johnson on Sept. 4 and 5.

Defense attorneys said they believe the process was aborted not because the grand jury would not indict, but because prosecutors came to believe it would be easier to take the case to a type of truncated preliminary hearing allowed under the same 1990 speedy trial initiative--Proposition 115--that revived use of grand juries in criminal cases.

“Maybe they figure they can get through the court on a 115-type hearing,” Farley said. “All you need is a cop to come in and read from what’s on the reports. So 115 makes it a slam-dunk to get up into the Superior Court.”

Such short preliminary hearings, however, can only be used effectively in relatively simple cases such as Johnson’s, where his attorneys have acknowledged that he fatally shot Deputy Aguirre.

In complex circumstantial cases such as Dally’s, where police officer testimony is much less valuable, the offering of witnesses could take many weeks at a preliminary hearing.

“A case that takes nine days before a grand jury would take five times as long before a magistrate,” Bradbury said. With a grand jury, “we get to trial a lot faster, and time can only hurt the prosecution.”

Bradbury said he disagrees with the perception that grand juries are biased in favor of prosecutors because they are not allowed to hear the defense case before deciding to send a case to trial.

“Defendants have no idea how well served they are by grand juries,” Bradbury said. “They’re demanding, they’re tough. . . . They ask a million questions. There’s no way they’re a rubber stamp.”