California Senate Bill Would Prevent Use of Grand Juries in Officer-Related Shootings

Senator Holly Mitchell of Los Angeles introduced a bill that would ban the use of grand juries in officer-involved shootings resulting in death
Senator Holly Mitchell of Los Angeles introduced a bill that would ban the use of grand juries in officer-involved shootings resulting in death

Last fall, the use of grand juries in two high profile officer-involved killings of unarmed black men prompted scrutiny and controversy over the grand jury system. The decision by the grand jury in Ferguson led to an extensive examination of the process and questions about the intentions of the prosecutor.

Meanwhile, a recent grand jury decision in New York to indict another officer, responsible for the death of a black man in a staircase, has renewed questions as to why the officer in the Eric Garner case was not indicted, despite the use of a chokehold – prohibited by department regulations – and pleas that he could not breathe.

Now in California, a series of legislation has been introduced to address how these issues might affect cases in California. Senator Holly Mitchell (D-Los Angeles) has introduced SB 227, a bill to prohibit the use of the criminal grand jury in cases of officer-involved shootings or in cases where excessive force used by an officer results in the death of a suspect.

Senator Mitchell, in a phone interview with the Vanguard on Tuesday, said that this bill was not about Ferguson or Staten Island.

“I am not drawing a direct correlation to those events,” she said. But she added, “I think those events have caused everyone across the country to look deeper into their systems in their own states to really figure out what the process is.”

As a policymaker, she is looking to “rebuild the sense of confidence and trust between my constituents and their expectation around the judicial process that protects them in the event a cop has used excessive force.”

Recently, the Senate and Assembly held a joint public safety hearing where this issue, among many others, came up.

Senator Mitchell said, “As I looked more deeply into the grand jury system, particularly criminal grand juries, I talked to constituents, I realized it is such a kind of black hole. People don’t generally understand the difference between a grand jury and a regular jury trial.”

“It really lacks transparency,” she added.

Her press release noted that, originally, secrecy in grand jury proceedings was intended to protect the reputations of the unindicted, individuals accused of crimes whom grand jurors determined should not stand trial.

However, given modern realities, in “today’s world of blogs, lightning-fast news, and video cameras at the touch of a cell phone, the original purpose of the grand jury has lost its meaning.”

The unintentional consequence, the senator said, has become a way to keep citizens from being fully informed and involved in the trials of those peace officers accused of abusing their power.

“Community mistrust in the justice system arises when the public’s right to know is abridged,” said Senator Mitchell. “Too often eye witnesses and video evidence substantiating charges of wrongdoing on the part of law enforcement are not revealed or probed in context, resulting in seemingly inexplicable dismissal of cases by the grand jury. “

Senator Mitchell is not the first public official to speak openly about the need to reform the grand jury process.  Senator Mitchell told the Vanguard that Judge Cordell believes that grand juries should be banned altogether.

LaDoris Cordell, a retired judge and Independent Police Auditor, said, “Proceedings in Grand Juries are secret, non-adversarial, and under complete control of the prosecutor. There is no place for secrecy in our criminal justice system, particularly where officer misconduct is alleged.”

Judge Cordell wrote an article last December that appeared in Slate, “Grand Juries Should Be Abolished.” In it, she noted that the Fifth Amendment has a clause protecting the public to answer for crimes without “indictment of a grand jury.”

She writes, “By codifying the grand jury in the Fifth Amendment, the framers intended to protect people “against hasty, malicious and oppressive prosecution.” On the state level, things are different.”

However, at the state level, judges preside over preliminary hearings which are open to the public and adversarial, meaning “Witnesses are questioned and cross-examined by prosecutors and defense attorneys, all of whom must abide by the rules of evidence.”

Unlike preliminary hearings, grand jury proceedings are not adversarial. As Judge Cordell notes, “No judges or defense attorneys participate. The rules of evidence do not apply; there are no cross-examinations of witnesses, and there are no objections. How prosecutors explain the law to the jurors and what prosecutors say about the evidence are subject to no oversight. And the proceedings are shrouded in secrecy.”

“In high-profile, controversial cases, where officers use lethal force, prosecutors face a dilemma,” she writes. “If they don’t file charges against officers, they risk the wrath of the community; if they do file charges, they risk the wrath of the police and their powerful unions. By opting for secret grand jury proceedings, prosecutors pass the buck, using grand jurors as pawns for political cover.”

Senator Mitchell’s law would eliminate the use of grand juries only in cases where the officer-involved shooting or use of force resulted in the death of the suspect.

Already, counties like Los Angeles and Santa Clara do not currently use the criminal grand juries in these instances, but she said, “It’s not consistent across the state.” So her bill would make it a statewide practice.

What her bill does not do at this point is create a process. “It’s silent,” she said. “Therefore, it would go through a typical process of information gathering – a criminal preliminary hearing.”

The bill is early in the process. The media has picked up on the bill, giving it press coverage, meaning some advocates are now aware of the bill. But so far, Senator Mitchell said there has not been real pushback from the law enforcement community.

“When the unarmed die at the hands of peace officers,” concluded Senator Mitchell, “people want to know why, what accountability will ensue, and how it can be prevented.”

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. PhilColeman

    ” . . . why the officer in the Eric Garner case was not indicted despite the use of a chokehold, prohibited by department regulations, and pleas that he could not breathe.”

    This comment would benefit from a re-write and leads the reader down a false trail. The New York Grand Jury (or grand jury in any state) has no jurisdiction in enforcement of police department regulations. The more relevant question specific to this case is, did the NYPD make a finding and exercise its powers of discipline?

    Senator Mitchell is part-way there. Instead of altering the California Grand Jury process to exclude indictments for alleged police brutality, she is urged to follow Judge Cordell sage advice and move to totally abolish grand juries in California, like several other states already have.

    Arguably, Senator Mitchell’s most profound comment in support of her bill was the original intent of the secrecy issue in the Grand Jury process to protect the unindicted from premature public exposure and scorn. The Senator and Judge note that Grand Jury secrecy provision in today’s electronic age only promotes public suspicion and distrust. Graphic videos widely played to a vast audience in advance of a Grand Jury proceeding mocks the notion that accused needs protection from public exposure.

    You’re not going to be able to abolish the Internet or blogs of every persuasion that thrives on speculation and false rumors. So, abolish the antiquated Grand Jury system and–by the way–transfer the millions of dollars in public funds spent to keep this antique alive to homeless shelters or medical clinics for the poor.

    What about Grand Jury inspection and investigation of public entities? What about it? Again, thanks to the Internet and family of blogs (including this one), public scrutiny of government agencies has attained the highest level of performance that no grand jury (comprised of people of average intelligence and character) has ever achieved. Blogs, for all their many failings, are always a “days march” ahead of any cumbersome Grand Jury public inspection or analysis.

    Yes, there are rare instances where an exceedingly complex criminal investigation, or national security case, needs a forum free from premature public exposure prior to potential arrest and indictment. A typical county grand jury, comprising “regular folk” and sitting for a year or maybe two, has always been ill-equipped to hear such cases. Follow the pattern already set by other English common law and Western European countries. Create a panel of retired magistrates of past distinction with State-wide jurisdiction. Present such cases to them in secret proceedings. Of course, that panel need not to receive cases of alleged police misbehavior. We’ll put the DA’s feet in the fire on those cases.


    1. David Greenwald

      Today I’m interviewing Assemblymember Kevin McCarty and he has a bill that would go the rest of the way – to create an independent commission to investigate police shootings.

      I’m with you on abolishing grand juries all the way.

      “What about Grand Jury inspection and investigation of public entities?”

      It’s limited. We saw recently the poor investigation of Ed Prieto by the GJ. It didn’t resolve anything. Then you have the fire report, again, needed a separate investigation. So I’m not convinced that the GJ is that effective in oversight of agencies, but I suppose we could limit them to that scope.

      1. PhilColeman

        Points on the futility and feebleness of the Yolo Grand Jury history noted and agreed.

        In summation, nothing substantive has happened in the recent history of the Yolo Grand Jury. Sloppy and inadequate investigations emanating from well intentioned but inept researchers. No opportunity sought or given by whomever/whatever is accused prior to Final Report. That’s a fundamental violation of Due Process.

        Even if somebody/something is dirty, the poor quality of the report gives too much slippage for the accused to be held accountable. Grand Jury sustem should be indicted.

      2. Miwok

        The problem with “independent commissions” is they are made up of people who, if truly independent, would still be chosen by the people they are investigating, or are friendly with.  A better way might be to have States or Counties create these, THEN exchange cases. The people also should not see who is presenting the case, or witnesses, and really make it independent.

        If they worked in the legal system at all, they are not independent.

        1. Davis Progressive

          we were talking about this in my office this morning, one idea floating around is that there would a standing body to investigate such matters. at some point you’re right, someone would have to name them, but if they are permanent, that’s less of a concern.  for instance, i still think the ag’s office where i would could do it effectively if we were given the charge.  you just be serious about selecting people who would take it seriously.

    2. zaqzaq

      The grand jury lead to the downfall of the chief probation officer a number of years ago when it forced employees of that department to answer questions under oath.  In that case it was an effective tool.

      1. PhilColeman

        I see more than a bit of presumption in this story. With a process secret from public disclosure, how can anybody be confident that probation employees responded in such a way as to cause the removal of the Chief Probation Officer? Are we working from a cause/effect analysis, and nothing more?

        Witnesses testifying “under oath” in a Grand Jury proceeding. The suggestion here is that employees were compelled to speak truthfully because to not do so would result in a charge of perjury.

        But here is the irony and fallacy of oath driven testimony in a Grand Jury investigation. You can’t prosecute a Grand Jury witness for perjury! If you did, the whole process would become public. Why? A perjury defendant still has the Constitutional right to be “faced by his accusers.” Picture a perjury defendant subpoenaing all the members of the Grand Jury. Picture the examining deputy district attorney being cross examined on the charge of perjury. No sitting DA would ever be that foolish. In fact, has anybody ever head of a Grand Jury witness even being charged with perjury, let alone convicted?

        1. zaqzaq

          The secrecy allowed the employees to testify without concern for on the job retaliation by the chief probation officer.  The published report summarized many concerns by the employees and much wrong doing by the chief probation officer.  There was significant fiscal mismanagement and conflict of interest that led to her departure.  I suspect that it was a real eye opener for the county CAO and led to her leaving the county.

  2. sisterhood

    “transfer the millions of dollars in public funds spent to keep this antique alive to homeless shelters or medical clinics for the poor.”

    Good idea. I would add spend some of the millions on public defenders so both sides are equally represented.

    1. PhilColeman

      I have no problem with that. But we can list about a hundred worthy needs with the windfall funding, so let’s not even bother going there. My examples were illustrative, not comprehensive.


  3. Davis Progressive

    ferguson really exposed the flaw in a grand jury scenario – the prosecutor has complete control.  the prosecutor in ferguson wanted to avoid indictment, knew they would have trouble without political cover, and concocted a process whereby he would convince the gj to not indict.  so i agree with phil coleman that ultimately we need to get rid of the grand jury.  we don’t need it.  95% of the cases probably higher in california operate through a preliminary hearing which is a low barrier but at least a fair process.  every so often the judge won’t find cause on a charge or at all, but at least the da has to have a real case – which is what the original grand jury was supposed to insure but failed to do so.

    1. Barack Palin

      Once again ad nauseam, the Ferguson Grand Jury decision was the right one, hanging your hat on a thug that had just robbed a store and attacked a cop isn’t a good example.

    2. zaqzaq


      If the prosecutor wanted to avoid a an indictment he would not have taken the case to the grand jury and just declined to file any charges in the same way the prosecutor in the Zimmerman case declined to file charges citing insufficient evidence that there was a crime.  It was risky to take it to a grand jury because the jurors were able to ask questions of all of the witnesses and they could have indicted and then the prosecutor would be stuck with an indictment that he did not want.   He tried to show it was fair by releasing the transcripts.  Either  way he would have taken heat for his decision by those  with an agenda not based on the concept of justice.  The grand jury still has a useful function in that if used properly, like in Furguson, it can hear evidence and make a decision short of an actual trial saving resources.  Look at the waste in the Zimmerman trial where the DA’s discretion was circumvented by a special prosecutor appointed for political reasons.

  4. hpierce

    Am I missing something?  Grand Juries can hand down indictments, but not verdicts.  Grand Jurors are paid a pittance for their efforts.  Defense attorneys are not paid, nor present.  Why would the Grand Jury system need to be abolished to provide a “dry run” to see if the prosecution so lacks evidence/cause to avoid trial courts where you have judges, attorneys for both sides, other Court expenses?  Am thinking that had a Grand Jury taken a crack at the “child abduction” case covered extensively here, there might not have been an indictment.  If used properly, perhaps we need to use the Grand Juries MORE.  Meant as an honest question.

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