The Long Story On Short Grand Jury Accusation History

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 22^nd 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.

Santa Clara County Civil Grand Jury Wins State ‘Best Report’ Honor

The California Grand Jurors’ Association has honored a Santa Clara County Civil Grand Jury (SCC CGJ) report with its annual Best Grand Jury Report Award.

The honor went to the 2018-19 SCC CGJ’s “Inquiry into Governance of the Valley Transportation Authority.” Released in June 2019, the 61-page report recommended a wholesale re-examination of the VTA’s governance structure.

Among other issues, the report took significant issue with the VTA board’s makeup. The VTA board comprises a rotating cast of local elected officials. Members of the County Board of Supervisors and San Jose City Council comprise more than half the board, giving San Jose considerable sway. Moreover, the VTA board that can be inexperienced in transportation matters and unprepared to make tough decisions needed to turn the VTA around and improve its financial performance, the report found. The report cites other problems with the VTA’s governance.

The report found a receptive audience. State Assemblyman Marc Berman, D-Menlo Park, was among those taking the report to heart. The 24^th Assembly District representative has proposed changes to the VTA board, citing in part the grand jury report. His Assembly Bill 1091 unanimously passed committee last year and is expected to come up in future sessions.

A 10-month investigation by the 2018-19 Santa Clara County Civil Grand Jury included countless hours of riding buses and light rail, visiting VTA sites, attending meetings and conducting about 50 interviews with more than 35 key VTA officials and stakeholders. This report sparked about 35 news and commentary articles and at least four local TV news reports.

The Santa Clara County Chapter of the CGJA nominated the VTA report for the Best Report award. The county chapter of the CGJA (link to website) is a non-profit organization of former SCC grand jurors dedicated to educating the public and government officials of the value of the county Civil Grand Jury as a watchdog to improve the performance of all government agencies within the county.

The California Grand Jurors’ Association is a statewide nonprofit organization of former grand jurors with the mission “to promote, preserve and support the grand jury system through training, education and outreach.” It grants its statewide Best Report Award to only one grand jury report each year. All reports published within the past five years are eligible. Here is a link to the CGJA award press release.

Sheriff’s Probe Tough Time Challenge For Grand Jury

The San Jose Mercury News reports (Sat. Oct. 9) that the Santa Clara County Civil Grand Jury indeed is investigating Santa Clara County Sheriff Laurie Smith’s office, focusing on how the Sheriff’s Office manages the county jails.

The investigation comes at the public request of the Santa Clara County Board of Supervisors. A number of elected officials and community members have long criticized how the Sheriff’s Office manages the jails. We won’t get into that big issue here, though here is a link to a 2016 civil grand jury report that pointed to many of the still-ongoing issues at the county jails.

We will, however, note that the reported investigation – and the Board’s request that the civil grand jury investigate – highlights the importance of the civil grand jury as a local governmental watchdog.

Here is the Mercury News article.

Reporter Robert Salonga has written past articles on grand jury reports. His reporting shows lots of knowledge about the civil grand jury, an entity that – in our opinion – should have a higher profile.

The rules and nuances of the civil grand jury system intentionally keep its workings undercover – except for its final reports. All civil grand jury reports are public. By and large, the final reports are intended to be the only communication by the grand jury. All investigations, interviews, research, on-site visits must be, and are, kept confidential.

That’s why this situation is unusual. While the civil grand jury systems exists in part for this task, seldom do elected officials publicly call on the grand jury to investigate any governmental office or official. The Merc article attributes information in its story to “sources familiar with the process.”

To be sure, the civil grand jury cannot, and will not, acknowledge investigating the Sheriff’s Office. Nor will it acknowledge that it’s investigating any of the hundreds of governmental agencies in Santa Clara County that can be targets of grand jury investigations. But in this case, the request was public. So, news reporters had a head start. Salonga apparently learned the right day to head to the courthouse. As the news story states: “A reporter for this news organization visited a downtown San Jose courthouse that day and observed signs of civil grand jury proceedings … .”

Our organization of former civil grand jurors never has any idea what the sitting grand jurors are investigating. In this case, though, we know the civil grand jury faces a time crunch. As the article states, it’s far from certain the jurors can complete their investigation by the end of their term in mid-December. The next grand jury could take up the matter, but interviews would have to be redone.

By the time county supervisors made their request (they also requested investigations by two other outside agencies), the current grand jury was deep into an unknown number of investigations. As of Oct. 12, it had not yet posted a single completed report. That is not unusual. For most civil grand juries, the end-of-term deadline crunch is very real.

Civil Grand Jury Could Investigate Sheriff

The importance of the county Civil Grand Jury came to light with the recent criticism of county Sheriff Laurie Smith.

On Aug. 17, county supervisors unanimously voted (https://localnewsmatters.org/2021/08/19/defiant-sheriff-responds-to-allegations-of-mismanagement-rejects-calls-to-quit/) to refer for possible investigation a wide range of Sheriff’s Office issues to authorities, including the Santa Clara County Civil Grand Jury.

Our county chapter of the Civil Grand Jurors’ Association praises Supervisors Joe Simitian and Otto Lee, and the full county board, for recognizing the tremendous tool local government has with its civil grand jury.

Simitian and Lee accuse the sheriff of mismanaging $450 million in county funds targeted for jail reform. The allocations largely came after several widely publicized instances of prisoner abuse. In addition, a criminal grand jury has looked into allegations the Sheriff’s Office granted concealed weapons permits to several individuals in return for campaign contributions.

Smith is not accused of any crime. After the Aug. 17 vote, the six-term sheriff said she welcomed any investigation, saying it would clear her name.

The county board cited California Government Code Section 3060 in referring its request for investigation to the civil grand jury. That code enables the civil grand jury to investigate any local elected or appointed official for willful or corrupt misconduct. The civil grand jury can then make an accusation in writing to the district attorney, after its investigation and with approval of at least 12 of the CGJ’s 19 members. The referral by the county board is equivalent to the confidential complaint that any citizen may file seeking a Civil Grand Jury investigation.  The Civil Grand Jury makes the decision whether or not to investigate.

Civil grand jury accusations are rare but do occur. In 2019, for example, a Contra Costa County Civil Grand Jury accusation against that county’s then-assessor, Gus Kramer, was filed by that county’s DA.

The seriousness of an accusation demands a thorough investigation. It’s not known if the present county Civil Grand Jury will, or can, accept the referral and open an investigation. It’s two-thirds through its one-year term and deep into other investigations.  It’s possible the CGJ already has been investigating these issues. It’s also possible the matter could be referred to the next CGJ, to be empaneled in mid-December. If the matter is referred to the next CGJ, we recommend the court consider encouraging holdover jurors to serve a second term on next year’s CGJ. This could make it more likely that an investigation of the Sheriff’s Office proceeds effectively.

The Mercury News has chided past civil grand juries for, as it states in this Aug. 11, 2021 editorial (https://www.mercurynews.com/2021/08/11/editorial-sheriffs-incompetence-is-costing-county-taxpayers-millions/), failing to file an accusation of willful or corrupt misconduct in office that would lead to a jury trial to remove the sheriff. That criticism seems unfair. It’s impossible for any outsider to know the deliberations, timing and resource-allocation issues for any civil grand jury. Initiating and completing any investigation much less an accusation investigation eight months into its current term is quite challenging, especially with the restrictions imposed by the pandemic on meetings and interviewing.  By charter, all civil grand jury actions are kept confidential. For the most part, any civil grand jury can only speak through its final reports and accusations, which are public.

VTA Governance

Assemblymember Marc Berman, D-Menlo Park, this past legislative session introduced AB 1091. The bill has since been tabled for this year, but could well return. The bill would alter the  composition and selection of the members of VTA Board of Directors and was sparked in large part by the 2019 CGJ report and investigation into the governance of the VTA. The proposed legislation would reduce the Board to nine from 12. Unlike the current composition, Board members would not be current elected officials. Terms would increase from two to four years. Perhaps most importantly, directors would be appointed by the nominating authorities such that the Board has experience, expertise or knowledge in the areas of transportation, infrastructure or project management, accounting or finance, and executive management.  This was a key recommendation of the CGJ report. Similar suggestions have proved controversial in the past, but the CGJ report points out the shortfalls of the current VTA system.

White Paper On Calif. Civil Grand Jury System

A white paper presented at the American Political Science Association’s annual conference in Sept. 2020 concluded that the state’s civil grand juries can be useful in providing third-party oversight of the legislative and executive branches of local government. The 17-page report, however, said more research is needed to better gauge the effectiveness of the civil grand jury system.

Influence of Santa Clara County Civil Grand Jury

In article that appeared on May 13, 2021, San Jose Spotlight spotlighted the county civil grand jury. It’s a good overview of the CGJ and offers valid criticism about diversity, effectiveness and other issues. While the local media often do news stories either based on CGJ reports or that include some references to CGJ reports, it’s rare for the CGJ itself to be the subject of a news media report.

Apply For Civil Grand Jury

In a story published July 14, 2021, and updated July 18, the San Jose Mercury News reported on how the Santa Clara County Superior Court is now accepting applications for the 2022 Civil Grand Jury. Sept. 17 is the deadline to apply for the one-year term, which begins at the start of the calendar year. As always, the courts — and our Association — encourages diversity in the makeup of the CGJ. Here is the link to the Mercury News story. For an application and all kinds of information about the Civil Grand Jury, visit the Santa Clara County Superior Court website here. In addition, anyone with questions can contact CGJ deputy manager Britney Huelbig at CGK@scscourt.org or 408-882-2721.