Grand Jury Reform Bill Expected to Be Approved

A major reform that would change the way grand juries do business in California by letting defense attorneys into the proceedings is expected to pass the state Legislature this year over the objections of county prosecutors.

The reform was sparked by the traumatic personal experience of Assemblyman Scott Baugh (R-Huntington Beach), who was indicted for alleged criminal campaign finance reporting violations in 1996.

Baugh said he wanted to tell his story to the grand jury. But, like many targets, he declined on the advice of his lawyer, who said it could be dangerous even for an innocent person to testify without counsel at his side.

After ultimately beating the charges, Baugh has set out to change the law to make the grand jury process more evenhanded.

“The grand jury is the only place in America where you can’t take your lawyer,” Baugh said. “But the state gets to have a team of lawyers in that room.”

Baugh’s bill to allow attorneys to accompany potential defendants into criminal grand jury sessions, but not to object or ask questions themselves, is expected to land on the governor’s desk by the end of summer.

A similar bill sponsored by Baugh two years ago was withdrawn amid signals that Gov. Pete Wilson planned to veto it.

Gov. Gray Davis has not weighed in yet, but if the bill does become law this time around, California would join 11 other states that allow attorneys to accompany their clients at criminal grand jury questioning. The federal grand jury system forbids the presence of defense lawyers.

In larger California counties, grand juries comprise about two dozen citizens who listen to evidence and testimony of witnesses questioned by county prosecutors who are undertaking criminal investigations or seeking indictments.

Currently, grand jury targets and witnesses can leave the room and confer with their attorneys, a process critics say is not only cumbersome but can also leave a bad impression with grand jurors, who may wonder why someone who is innocent needs so much legal advice. Targets who refuse to testify at all also risk looking bad to the jurors.

“The way it is now is almost farcical,” said Jennifer Keller, a defense attorney and past president of the Orange County Bar Assn. “People run in and out of the room to talk to their lawyers. . . . There’s an incredible danger someone is going to be pressured to give an answer without conferring with counsel.”

County prosecutors in California generally oppose changing the law and say the system contains sufficient safeguards to prevent a miscarriage of justice.

Baugh’s case proves it, they say, because a judge eventually threw out the grand jury indictment and later even removed the Orange County district attorney’s office from prosecuting the case. State Atty. Gen. Bill Lockyer forwarded the matter to the Fair Political Practices Commission earlier this year to consider if the campaign reporting problems merit civil fines.

“The grand jury is not a trial, it’s an investigation,” said David LaBahn, deputy director of the California District Attorneys Assn. and a former Orange County prosecutor. “We do not think it’s appropriate to turn grand jury [proceedings] into trials.”

Defense attorneys and criminal law professors, on the other hand, applaud the reform as long overdue because, they say, indictments are rarely thrown out by judges, and the grand jury is a rubber stamp for prosecutors.

“What are they doing in there that they don’t want to be observed by another member of the profession?” asked Christina Arguedas, an Emoryville lawyer who is past president of California Attorneys for Criminal Justice, an organization of defense lawyers.

Moreover, seemingly innocuous testimony by clueless witnesses without lawyers beside them often comes back to haunt them later at trial, experts say.

“Many times, a witness might not understand what is asked or answered,” said Southwestern Law School professor Myrna Raeder, who heads the American Bar Assn.’s criminal law section. “It really is a matter of fairness.”

Proponents of the change suggest the public may be more favorably disposed to changing the rules after seeing independent counsel Kenneth W. Starr’s use of a federal grand jury during the Clinton scandal.

“The public has much healthier skepticism about what prosecutors do and how prosecutors manipulate grand juries,” said Mary Broderick, executive director of the state defense attorneys organization.

She and others would like to see the grand jury revert to its role of colonial times--as a gatekeeper that stood between the average citizen and the potential overzealousness of the state.

Like much of our legal system, the grand jury is a British import. Dayton University law professor and grand jury expert Susan Brenner said grand juries of Revolutionary times were models of aggressiveness, deciding whom to investigate and charge without suggestions from prosecutors.

As the ranks of government prosecutors proliferated, the grand jury system fell out of favor, but attempts to do away with it failed.

For the most part, however, its independence has been diluted over time, Brenner said. Grand juries these days are “weak and passive bodies that are utterly dependent upon prosecutors for advice,” Brenner said.

Los Angeles Dist. Atty. Gil Garcetti said grand jurors are not lemmings that follow prosecutors’ advice blindly.

“Grand jurors have continued to exercise independent discretion, at least in our county,” Garcetti said.

Garcetti said one problem with changing the law is that prosecutors sometimes don’t know who the target of the investigation is until after hearing testimony.

In those cases, indicted defendants could argue they were deprived of having an attorney with them because they testified as witnesses, not targets.

Besides, said LaBahn, allowing targets to have an attorney present will do little, if anything, to increase the number of those who testify.

“I don’t know if many competent lawyers will allow their clients to testify,” LaBahn said.

Across the country today, grand jury law and practice is a hodgepodge. The sizes of grand juries range from 5 to 23 members. Some grand juries serve for days, others for as long as two years.

Twenty-three states require a grand jury indictment for certain offenses. Connecticut has done away with the use of the grand jury for charging crimes. New York has gone the other way by seeking to reinvigorate grand juries by informing them they have an independent voice.

No major impact has been reported yet by states that allow defense lawyers to be present during grand jury sessions. Prosecutors do not like the change, LaBahn said, but report no disasters.

Such reforms have been recommended for two decades by the American Bar Assn. but have been slow to catch on. Prosecutors vigorously oppose changing rules that favor them and, they say, work for all concerned.

In California, the use of the grand jury fell off dramatically in the early 1980s because a California Supreme Court decision said anyone indicted by a grand jury had the right to a preliminary hearing in which a judge rules if there is sufficient evidence to support the charges.

Seeking not to duplicate their efforts, prosecutors rarely used grand juries for indictments, said Gerald Uelman, a professor of criminal law at Santa Clara University law school.

Then state voters passed an initiative that allowed prosecutions to go straight from indictment to trial, and the use of grand juries swelled.

The increased use of grand juries in the state renewed interest in changing the way they operate.

Baugh is chipping away, bit by bit.

Two years ago, his bill to require prosecutors to inform grand jurors of exculpatory evidence became law. Now, armed with support from all over the political spectrum, he’s determined to make additional changes.

Would Baugh have testified in his own case if his attorney could have been with him?

Perhaps, said Baugh’s attorney, Allan Stokke, whose clients sometimes do just that even without him by their side.

But that isn’t the point, he said.

“An anachronism exists right now to have a prosecutor where a lawyer isn’t allowed to be with his client,” Stokke said. “It’s time to bring the grand jury into the current age.”