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APPELLATE COURT SAYS LAW PROHIBITING GRAND JURIES IN OFFICER-INVOLVED LETHAL FORCE CASES IS UNCONSTITUTIONAL

 

Police use-of-force has been big news in this country for several years now. A large segment of the public believes that the police have used fatal force without just cause. They cite many high-profile cases: Michael Brown, Eric Garner, Freddie Gray, and so on. These police killings have triggered a storm of protests across the country, including in California. In some of these cases, the officer or officers involved faced possible charges of manslaughter or even murder. In virtually all of these cases, the decision as to whether to prosecute these officers is left to a secret grand jury proceedings. With few exceptions, the grand juries have found that an indictment of the officer is not supported by the evidence. The public often perceives the grand jury as biased in favor of the cops and there has been a high level of distrust in the grand jury system. It doesn’t help that the proceedings are held in secret.

California became the first state in the country to address the public’s distrust of the grand jury system as employed in officer-involved lethal force cases. In 2015, Governor Brown signed into law a bill, SB 227, prohibiting the use of grand juries in California when an officer has used lethal force under circumstances that are possibly criminal. Rather, if a cop was to be charged, the district attorney would have to directly file the criminal complaint and the case would proceed through an open preliminary hearing. Thereafter, charges by what is called an information would be filed by the district attorney if the evidence at the preliminary hearing showed a reasonable possibility that the officer’s use of lethal force was a criminal act. Prior to enactment of SB 227, California prosecutors had the option of going to the grand jury or directly filing charges by a criminal complaint.

Not surprisingly prosecutors opposed SB 277. They argued that the grand jury system, by the fact that it is held in secret, facilitates the discovery of the truth. The grand jury proceedings, they argued, permits them to compel witnesses to testify and “offer a fuller seeking of the truth for all sides. . ..” (SB 227 Arguments in Opposition.) Prosecutors also objected because they argued that if they could not use the grand jury as an investigation tool in police lethal force cases, it hampered their ability to properly investigate the incident.

The law was challenged by the El Dorado County District Attorney which had planned, before passage of SB 227, to convene a grand jury investigation after January 1, 2016 into a fatal police shooting in South Lake Tahoe. The El Dorado DA challenged the new law on state constitutional grounds. The appellate court sided with the district attorney finding that “the Legislature does not have the power to enact a statute that limits the constitutional power of a criminal grand jury to indict any adult accused of a criminal offense.” The decision could be appealed and potentially end up in the California Supreme Court but as of now, the law enacted by SB 227 (Penal Code 917(b)) is unconstitutional and no longer operative in the state. District attorneys can, at least until or unless a higher court says otherwise, continue to choose whether they want to proceed with a grand jury investigation or file charges directly in officer-involved lethal force cases in the state.

Criminal defense attorney William Weinberg is available to consult with you regarding any criminal matter. You can reach him at his Irvine office at 949-474-8008 or email him at bill@williamweinberg.com.