A major reform that would change the way grand juries do business in California by letting defense attorneys into the proceedings is expected to be passed by 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 on allegations of criminal campaign 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 seeing his indictment thrown out by a judge, 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," said Baugh. "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, is scheduled for a hearing in the Senate Public Safety Committee today. It 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A similar bill sponsored by Baugh two years ago was withdrawn amid signals that Gov.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 it does become law this time around, California would join 11 other states that allow attorneys to accompany their clients during criminal grand jury questioning. The federal grand jury system forbids the presence of defense lawyers.
In larger California counties, grand juries are composed of about two dozen private 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 that critics say is not only cumbersome, but also can 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 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 that 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 whether 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 proposed 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?" asks Christina Arguedas, an Emoryville lawyer who is past president of the 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 that 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.
Like much of our legal system, the grand jury is a British import. Once models of aggressiveness during Revolutionary times, grand juries are now "weak and passive bodies that are utterly dependent upon prosecutors for advice," said grand jury expert Susan Brenner.
Los Angeles County 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 do not know who the target of the investigation is until after hearing testimony.
In those cases, indicted defendants could argue that they were deprived of having an attorney with them because they testified as witnesses, not targets.
Across the country today, grand jury law and practice is a hodgepodge.
The size of grand juries ranges from five to 23 members. Some grand juries serve for days; others for up to 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 now allow defense lawyers to be present during grand jury sessions. Prosecutors do not like the change, LaBahn said, but report no disasters.