In 2020, something quite unusual took place before a Santa Clara County criminal grand jury looking into allegations that members of the sheriff’s office might have sought bribes in return for concealed firearms permits. The unusual event was that Laurie Smith, then in her 22nd year as Santa Clara County sheriff, invoked her Fifth Amendment right against self-incrimination.
(Shorter versions of this commentary appeared in the San Jose Mercury News and in the California Grand Jurors’ Association Journal.)
Hmmm. So, 16 months later, that event led to another unusual event: The Santa Clara County civil grand jury formally accused Smith of six counts of willful and corrupt misconduct and a seventh count of willful misconduct. The accusations – which extend beyond the gun permits issues — are filed as “The People of the State of California vs. Laurie Smith.”
The differences between the state’s criminal and civil grand juries are many, and most folks would be confused. As part of their normal jury summons, citizens might end up serving on a criminal grand jury. These panels hear evidence presented by prosecutors in court proceedings to determine if formal charges are warranted.
The civil grand jury (CGJ) is an arm of the Superior Court, but it seldom deals with courtrooms and legal proceedings. Residents volunteer to serve a one-year term on this panel. Despite its crucial work and considerable investigative powers, it remains low-profile.
A watchdog agency, the CGJ can investigate any local (not state or fed) governmental entity within its county and craft reports highlighted by findings and recommendations. Agencies targeted by a recommendation must respond in writing to the findings and recommendations. Even where an agency agrees with the findings and recommendations, the implementation of those recommendations is spotty and not required.
The Smith accusations, however, stem from another unique power of the CGJ, and one with many more teeth. CGJs can investigate elected or appointed officials – compelling testimony using subpoena powers – and decide if they’ve uncovered enough evidence to make an accusation of “willful or corrupt misconduct.” This can lead to a trial that in turn may result in forcing the official from office. (The initial hearing for Sheriff Smith took place Jan. 14. The next court hearing is slated for March 15.)
Quite a power.
For our organization of former civil grand jurors – and for all citizens — the Smith accusations are fascinating, and enlightening.
How rare are such accusations? This San Jose Mercury News article https://www.mercurynews.com/2021/12/15/qa-corruptions-accusations-against-the-santa-clara-county-sheriff-and-how-they-might-lead-to-her-removal/, chock full of info on the process, cites retired county prosecutor William Larsen in saying that only about 100 local officials in California have been removed under this process in the past 150 years.
A report by the 2001-02 SCC CGJ https://www.scscourt.org/court_divisions/civil/cgj/2002/MTVIEW.pdf found only 37 appellate court decisions in California involving accusations between 1885 and 1999. That report was an adjunct to an accusation that panel leveled against Mountain View Mayor and Councilman Mario Ambra for violating the city charter by repeatedly going to city staff with his opinions and urging actions instead of going through the city manager. He ended up resigning. In its report, the 2001-02 CGJ pointed out that “this accusation procedure does not fit neatly into the oversight and reporting processes the Grand Jury normally considers … .”
There is but one other recent case in the Bay Area. The Contra Costa County CGJ made an accusation against elected County Assessor Gus Kramer in 2019. It resulted in a trial, a hung jury and eventual dismissal.
The Mercury News says https://www.mercurynews.com/2021/12/16/editorial-santa-clara-county-voters-need-speedy-resolution-of-sheriffs-case/ the Ambra case is the only Santa Clara County accusation in the last 40 years.
Another case involved former San Jose Mayor Ron Gonzales. The county’s 2004-05 CGJ did not make formal accusations against the mayor but instead issued a scathing conventional report https://www.scscourt.org/court_divisions/civil/cgj/2005/SanJoseTrashDeal.pdf that detailed improprieties in the awarding of a city garbage contract. The following year, a county criminal grand jury indicted Gonzales on six counts. A judge later dismissed all charges.
Even though accusations are so rare the power to wage such accusations is the law and is prominent in descriptions of CGJ duties. The Santa Clara Superior Court, in its outline of CGJ duties, leads off with this: “Consider the evidence of misconduct against public officials to determine whether to present formal accusations requesting their removal from office.”
The California Grand Jurors’ Association, the non-profit parent of which our organization is a chapter, notes in its description of CGJ duties that “the accusation process is considered to be ‘quasi-criminal’ in nature.”
All civil grand juries are sworn to secrecy. We won’t speculate on the 2005 CGJs decision to not take the accusation route. Suffice to say making such accusations requires a ton of work and the acceptance of a heavy responsibility.
The 2021 SCC CGJ, by any measure, performed yeoman’s work. The CGJ lists 65 witnesses interviewedduring its investigation.
Undertaking such an investigation is daunting. To avoid any appearances of favoritism, the CGJ in its Sheriff Smith investigation was advised by San Francisco Assistant District Attorney Evan Ackiron, rather than the Santa Clara County DA.
Santa Clara County District Attorney Jeff Rosen called the CGJ’s action “unprecedented,” in an interview with NBC Bay Area. https://www.nbcbayarea.com/investigations/unprecedented-santa-clara-county-da-sounds-off-on-grand-jury-corruption-accusations-against-sheriff/2756876/.
What sparks such an investigation? The Santa Clara County Board of Supervisors, led by Supervisors Joe Simitian and Otto Lee, asked the SCC CGJ to investigate Smith. Supervisors already had a number of beefs with the sheriff.
Similarly, Contra Costa County supervisors had a number of beefs with the assessor, and they asked their CGJ to investigate.
The Mayor Gonzales report stemmed from a normal complaint filed with the SCC CGJ. (All complaints are confidential.)
The Ambra case followed a different process. In that case, the Mountain View city manager went to the county DA. Then the DA empaneled the civil grand jury to fill the duties of a criminal grand jury. The CGJ voted to make its accusations after two-plus days of testimony and deliberation.
Bravo to Simitian, Lee and the supervisors for realizing the possibilities of the civil grand jury. Bravo to the 2021 CGJ for having the confidence and chutzpah to tackle the job.
This case should encourage more elected officials and whistleblowers to consider enlisting the CGJ. And we hope this case encourages future CGJs to consider accusation investigations where the members feel it is warranted. The citizens of Santa Clara County need watchdogs.