Grand Jury’s Refusal to Indict Is an Unusual Case

The Orange County Grand Jury’s apparent decision not to hand down indictments against employees of a Latino rights group on vote fraud charges was a rarity in the legal world.

Prosecutors are seldom rejected when they ask grand juries to return indictments against targets of investigations. Indeed, grand juries are often seen as rubber stamps for district attorneys.

According to a source close to the investigation, the grand jury rejected Dist. Atty. Michael R. Capizzi’s request for indictments against two employees of Hermandad Mexicana Nacional, leading to some speculation Thursday in the legal community.

Was the grand jury’s decision a statement that Capizzi’s evidence against Hermandad was so thin that it didn’t warrant indictments? Or did prosecutors push hard enough for criminal charges?

Because grand jury proceedings are secret under state laws, only grand jurors and Capizzi know exactly what happened. Prosecutors officially have declined comment, except to say that the investigation is “still open.” But sources said this week that the district attorney’s office is preparing to close the case without filing charges.

Peter Arenella, a UCLA law professor who is considered one of the nation’s foremost experts on grand juries, said that prosecutors “are capable of sending their own subtle message to grand juries.”

“It is not unheard of for prosecutors to put the onus of responsibility on a grand jury decision not to indict, when in reality the prosecution presented a weak case,” he said. “This could be a case in which authorities are using the grand jury as a convenient scapegoat for their internal decision not to go forward.”

Arenella said prosecutors sometimes use a grand jury’s refusal to indict as an explanation why prosecution of the target of an investigation was not possible. This tactic is often relied on in cases involving police officers accused of using excessive force, Arenella said.

David Biggs, a professor at Western State University College of Law in Fullerton, called the news not to indict “very odd.”

Because grand jurors are dependent on prosecutors for all their information and guidance, the proceedings are generally so one-sided that “even a marginal prosecutor can indict a ham sandwich,” Biggs said.

Another high-profile case in which an Orange County grand jury rejected prosecutors’ recommendation involved the 1993 Christmas Day shooting death of Sheriff’s Deputy Darryn Leroy Robins, who was black, by a white colleague.

In that case, prosecutors recommended that Deputy Brian P. Scanlan be indicted on involuntary manslaughter charges, but grand jurors said no. Leaders of minority organizations criticized authorities’ handling of the case, prompting prosecutors to release their investigative files.

Legal analysts say that one reason they find the grand jury’s decision not to indict Hermandad employees perplexing is the low standard of proof that prosecutors need to secure an indictment. A prosecutor need not prove that an individual is guilty, only that there are reasonable grounds to believe the individual committed a crime, Arenella said.

“It is not very difficult to establish probable cause even in a very weak case,” Arenella said, “which is why someone might be somewhat suspicious of the grand jury’s refusal to indict.”

But Gary W. Schons, a senior assistant state attorney general in San Diego, said grand jurors were probably exercising their discretion in the case.

“In sensitive cases like this, the grand jury can represent the collective wisdom of the community as to whether certain types of conduct ought to be criminally prosecuted,” Schons said. “They are not only expressing a technical legal determination as to whether or not there is not sufficient evidence to indict, but . . . whether this is the kind of conduct that merits criminal prosecutions.”

But any announcement that the investigation of Hermandad will produce no charges could trigger harsh reviews of Capizzi, who is planning a run for state attorney general in 1998.

Michael J. Schroeder, a Santa Ana attorney and chairman of the state Republican Party, and other Republican leaders have been fiercely critical of Capizzi for pursuing charges of election law violations against former GOP aide Rhonda Carmony and Assemblyman Scott Baugh (R-Huntington Beach). Schroeder said Capizzi’s political fortunes would suffer if there are no charges in the Hermandad case.

“It will be the result of gross incompetence by Michael Capizzi,” Schroeder said.