Why Grand Juries Cannot Act Like Grand Juries Should

The 1996-97 grand jury’s term ended with one of its members being dismissed and sanctioned $950, largely because he claimed in public that he and his fellow jurors were being used as a rubber stamp by prosecutors. Closely behind the juror’s dismissal, the grand jury issued a previously drafted report that was scathingly critical of its in-house district attorney and county counsel legal advisors. Disturbingly, the grand jury’s increasing use as a criminal-indictment assembly line has distracted it from its most important job.

In California, the grand jury serves three functions. On the criminal side, it hears testimony in secret and decides whether the evidence is sufficient to warrant a felony indictment. Its charge under civil law is to act as the people’s “watchdog”--to assure that local governments are operating honestly and efficiently. Last, if the grand jury determines that a public official has behaved with malfeasance or otherwise abused his or her office, it has the power to direct that the official stand trial on why he or she should not be removed from office.

While the law confers enormous powers on the grand jury, its independence is radically curbed by its “legal advisors.” For the district attorney, the watchdog’s basic trick is to “roll over and indict,” while county counsel wants the grand jury to “roll over and play dead.”

Invariably, the grand jury’s annual report analyzing county government and recommending changes in its administration is dead on arrival at the Board of Supervisors. Department heads use the report as a doily for coffee cups and donuts. The judges who appoint the grand jurors mostly shelve their reports, unread. No wonder that L.A. grand juries have neither the independence nor stamina to defy their advisors.

The federal Constitution requires that both the grand jury and trial juries be drawn from a cross-section of the community. Unlike trial jurors, who are drawn from a pool of registered voters and DMV licenses, grand jurors are personally selected by the county’s 239 Superior Court judges. Not surprisingly, some folks get overlooked when the invitations go out.

One result is that in a county where the median age is 30 and only 35% of the population is white, grand-jury nominees are overwhelmingly white, affluent senior citizens (average age 67) living in suburban, single-family homes exceeding 2,000 square feet. One could shoot a cannon south from the roof of the Criminal Courts Building to San Pedro without any fear of hitting a prospective grand juror. Turn the gun east, reload and fire with the same certainty of a miss until the shell travels beyond West Covina.

Indeed, more grand jurors are nominated from Lancaster and Palmdale than from Gloria Molina’s 1st and Yvonne Braithwaite Burke’s 2nd Supervisorial Districts (collectively, more than 40% of the county’s population but only 14% of the grand-jury pool). Latinos, who are 44% of the L.A. County’s population make up 5% of the grand-jury pool. Asians, now 11% of the population, are 1% of the pool. The overwhelming majority of indictments returned are against nonwhites.

By virtue of this “key man” selection process--originally used in the Deep South to preclude blacks from sitting as jurors--the grand jury’s homogeneity tends to engender an immense naivete, since few of its members have much familiarity with urban street life. Which brings us to the case of grand juror Jerry Berk, a retired civil trial lawyer.

The law provides that when a district attorney presents evidence to the grand jury for a criminal indictment, there is neither a judge nor a defense attorney present in the room. Legal questions and evidentiary rulings are decided by the grand jury’s advisor, who, of course, is also a district attorney. Questions from the grand jurors are cleared by the legal advisor, which ensures that potentially dangerous inquiries to be deflected or buried. Next to the words “not guilty,” the most feared phrase in a prosecutor’s lexicon is “runaway grand jury,”--a grand jury that has gotten out of the D.A.’s control and is acting independently.

Since grand jurors know only the law that is given to them by their advisors, and only the facts that their advisors choose to present, defense lawyers, prosecutors and many judges have long assumed that if a prosecutor brought a ham sandwich into the grand-jury room, the grand jury would indict it. As a practical matter, it is the “advisor” who is the master and the grand jury the servant.

Berk became a problem because, as a lawyer, he felt that much of what was presented as “evidence” was highly disputable in court. Unlike federal grand juries, the Penal Code requires that California grand juries hear only evidence that would be legally admissible in a trial. Hearsay, unsupported opinions, speculation and unduly inflammatory evidence should not be presented. Berk claimed that this was precisely the kind of “evidence” being presented.

Berk went public with his complaint. A month later, Supervising Judge John H. Reid slammed Berk with a $950 fine for talking to the press, in violation of Reid’s court order.

But prosecutorial abuses of the grand-jury system are well-known within the legal community. In 1978, the state Supreme Court ruled, in Hawkins vs. Superior Court, that using grand-jury indictments instead of charging a defendant via a preliminary hearing before a judge violated the state Constitution’s “equal protection” clause.

In 1990, the state’s prosecutors sponsored the misnamed “Speedy Trial Initiative,” which amended the state Constitution to restore prosecutors’ right to exploit the grand jury. By increasingly turning to the grand jurors for criminal indictments, however, the district attorney prevents the body from doing its best work: ferreting out government incompetence and inefficiency. Despite what the jurors reported as the “divided loyalties” of its advisors, the 1996-’97 grand-jury report, for example, recommends specific changes in the relationship between the coroner and local police agencies, consolidation of forensic laboratories and the distribution of clean hypodermic syringes as a public health measure to fight the spread of hepatitis and AIDS.

By far, the jury’s most important investigation focused on the county’s 476 foster homes. In April, the grand jury found that these homes produced children who were underfed, underclothed, undereducated and uncared for. One day after the report was issued, the Board of Supervisors demanded to know why the Department of Chidren and Family Services was unaware of a situation so apparent to the grand jury.

One reason may be that county counsel prosecutes the childrens’ abusive parents and seeks to place the children in group foster homes even as they advise the grand jury on its investigations. By any standard, this multiple representation creates a conflict of interest.

It is time to get both the district attorney and county counsel to get out of the grand-jury advising business.