D.A. Turns Grand Juries Into Indictment Tool

Los Angeles County Dist. Atty. Steve Cooley is using the criminal grand jury aggressively and frequently, enabling prosecutors to obtain sworn testimony in secret proceedings, yet frustrating defense attorneys, who fear that their clients’ rights may be violated.

Since July 2000, Los Angeles County prosecutors have conducted nearly 90 grand jury indictment hearings, most of which have resulted in multiple defendants being charged. The criminal grand jury indicted 38 people in the first three months of this year. And there have been about 50 criminal investigations.

“Under Steve Cooley’s administration, it’s being used more than it’s been used before,” said Judge David S. Wesley, who supervises the criminal courts in Los Angeles. “He knows the value of it.”

Under previous district attorneys, prosecutors went to the grand jury for select cases, but never to the current extent.

Former Dist. Atty. Gil Garcetti said he primarily reserved the grand jury for cases with uncooperative witnesses or for difficult or high-profile cases in which he wanted to test the evidence before bringing charges.

Former Dist. Atty. Ira Reiner said that by definition, the grand jury is rarely used, but that Cooley’s political corruption cases are different. The grand jury is especially effective in complicated “paper” cases or “pass the buck” cases -- those that a prosecutor would prefer not to decide, Reiner said.

He used grand juries in the case against former Lincoln Savings & Loan operator Charles H. Keating Jr. and in the beating of Rodney G. King.

Cooley said the grand jury is the ideal way to expose “dirty tricksters” because of its power to compel sworn testimony and subpoena documents in sensitive political corruption cases. By granting immunity, Cooley said, he can persuade some witnesses to divulge information that they otherwise might have kept from investigators. And he can conduct investigations or seek indictments in private.

Grand jurors initiate criminal charges by voting an indictment. Such an indictment allows prosecutors to jump straight to trial, skipping the preliminary hearing -- a proceeding in which the judge decides whether there is enough evidence for the defendant to be tried.

Some defense attorneys complain about the frequency with which Cooley is turning to the grand jury. They are quick to repeat an old saying: If prosecutors asked grand jurors to indict a ham sandwich, they would.

By law, no defense lawyers are present at grand jury proceedings to cross-examine witnesses, and no judges are there to make rulings. And though prosecutors are obligated to tell grand jurors about any exculpatory evidence that exists, they are not required to present that evidence.

The criminal grand jury has indicted police officers, politicians and gang members. Among those indicted in recent years have been former South Gate Treasurer Albert Robles, on election-related fraud charges, and an executive of Alan Casden’s development firm, Casden Properties, for allegedly conspiring to hand out illegal campaign donations.

And the office is enmeshed in a battle with the Roman Catholic Archdiocese of Los Angeles over the grand jury’s subpoenas of documents that prosecutors believe will show how the church mishandled sexual abuse by priests.

“The grand jury has never been used this aggressively before,” Cooley said soon after being reelected. “It’s just the most efficient tool to get this information.... It’s just absolutely the best way to go.”

Most of Cooley’s campaign against political corruption, which has yielded about a dozen indictments of politicians and their employees, has been run through the grand jury. The “pay to play” investigation at City Hall is the most publicized of recent proceedings. In that inquiry into city contracting, county prosecutors have called several witnesses before the grand jury.

In California, there are two ways to charge people with serious crimes. The vast majority are accused in written charges filed by prosecutors. A small minority of charges flows from grand juries. All 58 counties are required by state law to have a grand jury. The presiding Superior Court judge has the power to call a second panel.

Los Angeles County has had two panels since July 2000, when the grand jury was separated into one criminal and one civil group. The change followed complaints that a single grand jury did not represent the county’s diverse population.

Civil grand jurors, nominated by judges, are selected for one year of service. Criminal grand jurors, randomly selected from the general jury pool, sit for one month. The civil grand jury is intended to serve as a citizen watchdog panel by investigating local government agencies. It evaluates how public money is being spent, examines conditions at jails and investigates social service agencies. Each panel has 23 members.

The criminal grand jury investigates possible crimes and returns indictments. To indict, at least 14 members must agree there is a strong suspicion that the person accused of the crime committed it.

The institution dates to medieval England, and has been controversial almost from the beginning. Today it is widely perceived to be controlled by prosecutors because it gives them significant advantages.

“The D.A. stacks the deck,” said defense attorney Mark Werksman. The grand jury indicted Werksman’s client Cody Cluff last year on charges of embezzling money as head of an agency created to promote film production in Los Angeles. “You are not there to poke holes in the testimony or to challenge the admissibility of the evidence. [Prosecutors] always win in front of the grand jury.”

The ability to subpoena witnesses, forcing them to answer questions under oath, is a grand jury’s most feared power.

“Because you can compel them, you can sort of shake people loose,” said prosecutor Max Huntsman, who has presented several cases before the grand jury. “You can often get information from people you wouldn’t get otherwise.”

Defense lawyer Charles Lindner, who helped lead the fight to get a separate criminal grand jury in Los Angeles County, said, “Anyone who thinks the grand jury is a friend of the defense is delusional.”

Deputy Dist. Atty. Laura Priver, the grand jury advisor whose role is to ensure that correct procedure is followed, says prosecutors are required by law to present only evidence that would be admissible in a regular criminal trial. She says prosecutors nearly always present exculpatory evidence that they know about.

Defense lawyers “have to rely on us that we really are doing the right thing,” she said. “We’re not hiding anything.”

Garcetti said, however, that prosecutors often don’t present a full picture of the case to grand jurors. “Most of the time we want the indictment,” he said. “In that situation, you have more of a biased presentation of the evidence.”

If an indictment is returned, the defense can challenge it before a judge, based on transcripts of the proceedings. There have been two well-publicized grand jury indictments dismissed in Los Angeles County since July 2000.

Los Angeles Superior Court Judge Robert J. Perry dismissed charges in 2001 against Jean M. Thorbourn, a former bookkeeper accused of embezzling more than $1 million from Hebrew Union College-Jewish Institute of Religion. The judge ruled that prosecutors did not tell grand jurors about possible exculpatory evidence. Prosecutors said they didn’t know about it at the time.

Last month, a judge threw out the case of one of developer Casden’s subcontractors, Laszlo Furdek, indicted for allegedly conspiring to hand out illegal campaign contributions. The judge ruled that prosecutors had granted Furdek immunity in his testimony before the Los Angeles Ethics Commission but then used that immunized testimony to get the indictment.

Michael Vitiello, a professor at the McGeorge School of Law in Sacramento who -- with a colleague -- conducted a study of grand juries in California in 2001, says criminal grand jurors do what prosecutors ask them to do in most cases.

He and fellow professor J. Clark Kelso made several recommendations to the Legislature last year.

One was that if the subject of a grand jury investigation testified, he or she should be allowed to have an attorney present. Currently, a subject may leave the room to confer with lawyers.