Monday, October 6, 2008
Page 7
PERSPECTIVES (Column)
Separate Civil and Criminal Grand Juries: Brainchild of Evelle Younger
By ROGER M. GRACE
Seventy-Third in a Series
Evelle J. Younger might well be termed the father of the bifurcated grand jury system now in effect in Los Angeles County and certain other counties in the state.
In 1963, while still a Los Angeles Superior Court judge, he began his push for separate civil and criminal grand juries…confining his attention, at that juncture, to this county. He wrote a “letter to the editor,” published by the Los Angeles Times on Nov. 20, which says, in part:
“The Grand Jury should continue to fulfill its ‘watch-dog’ functions over public officials, to investigate reports of corruption, to audit the various county government departments, to inspect the county jails and hospitals, to make recommendations on a variety of problems.
“In addition, one or more supplemental grand juries should be impaneled to hear specific criminal cases where it appears that Grand Jury investigation is advisable, and that the matter will take a considerable amount of time.
“Last year when I was presiding Judge of Department 100, Criminal Master Calendar, Los Angeles Superior Court, and adviser to the Grand Jury, there were eight or ten occasions when a particular matter would occupy the Grand Jury full time for a week or more.”
An editorial on the same page discusses Younger’s proposal and others relating to grand juries and concludes that “supplementary juries to share the load is a matter for serious study.”
Then Younger became DA, taking office in December, 1964. A Feb. 6, 1966 news story in the Times relates that in a monthly report on office operations, Younger observed that “this is the time” to seek legislation authorizing more than one grand jury, with the primary one handling the civil functions.
A Feb. 9 editorial in the Pasadena Independent observes:
“When Los Angeles County’s first grand jury was established back in 1849, the whole county had about 3,500 people, just a few hundred more than would fill Pasadena’s Civic Auditorium today.
“One grand jury was sufficient to play ‘watchdog’ over the various county departments as well as hearing what few criminal cases existed.
“Yet today with seven million residents, there still is just one grand jury to investigate all civil and criminal matters and make recommendations for their improvement.”
The editorial says that Younger’s plan “makes considerable sense.” It goes on to opine:
“In 1963, the Legislature passed a law enabling Los Angeles County to have its present 23 grand jurors, compared to the 19 which every other county in the state has. That change was minor, though, in view of Los Angeles County’s overwhelming population difference and its monstrous problems compared with those of other counties.”
Younger issued a booklet on March 8, 1966, with 11 mimeographed 8½ x 11-inch pages (plus a blue cover and back) containing 10 legislative proposals. The last one calls for legislation “[t]o permit the empanelling of additional Grand Juries for specific assignments by the court on its own motion or at the request of the District Attorney.”
The proposal have permitted empanelment of addition grand juries to conduct either civil or criminal investigations. It deviated from the idea of completely disjoining civil and criminal functions—an idea that appears to be one originated by Younger. The concept of empanelling more than one grand jury, on the other hand, was not something he had personally conjured up; three grand juries in recent years, in concluding their work, had declared that there was too much that needed to be done for one body to accomplish.
Younger’s effort to gain grand jury reform in 1966 flopped. On Dec. 15, he announced a legislative program for 1967, with seven proposals, including the one on grand juries.
A blow was dealt to that effort when the final report of the 1966 grand jury was issued. It proclaims that one grand jury can handle “all matters which are properly brought before it.”
Again in 1967, no success. Younger persisted.
A May 28, 1968 article in the Pasadena Star News reflects how a bill could be crushed through rash action in committee. It reports:
“The Criminal Procedures Committee of the State Assembly has killed legislation which would have given Los Angeles County a second grand jury panel when the author, Assemblyman Harvey Johnson (D-El Monte), failed to garner the necessary six votes.
“Two dissident Democrats on the committee rejected the proposal after Johnson refused to amend his bill to require that the second panel handle only civil cases.
“Four Republicans, however, sided with Johnson on the proposal.
“Johnson said amending the bill would only hurt the plan because Los Angeles District Attorney Evelle Younger would not agree to the Democrats’ request.
“Johnson said Younger wanted the second grand jury to do only criminal work.”
In light of the 1966 and 1967 legislative proposals by Younger making no such insistence, it appears the bill was capsized in 1968 based upon an intransigence falsely imputed to the DA.
Younger persevered. A Jan. 13, 1969 dispatch from Los Angeles by United Press International says:
“Dist. Atty. Evelle J. Younger today outlined proposals on pornography, additional grand juries, gambling and firearms control which his office will propose to the state legislature….
“He said similar measures in the past proposed by his office have not met with success.”
The grand jury measure did not meet with success that year.
But support for a dual grand jury system was mounting. State Attorney General Thomas Lynch became a proponent of it. A Times editorial of June 12, 1970 notes that various proposals for grand jury reform were floating around, but that “the best of all reforms would be the two-jury plan.
Such a plan was embodied in a bill being carried by Assemblyman Pete Schabarum, R-Covina, AB 1012. Schabarum, later to serve on the Los Angeles County Board of Supervisors, had been foreperson of the 1965 grand jury. On July 13, 1970, the measure passed both houses, and was soon signed into law by Gov. Ronald Reagan.
The bill applied only to “counties having a population exceeding 4,000,000”—that is, Los Angeles County. After amendments to the bill, it authorized empanelment of “one additional grand jury to inquire into matters subject to grand jury inquiry, except public offenses.” That is, the second grand jury, contrary to what Younger wanted, would handle only civil probes. The second jury could be requested by the district attorney or attorney general, but it would be up to the presiding judge of the Los Angeles Superior Court whether to comply.
A bill by Assemblyman Edwin Z’berg, D-Sacramento, to require two grand juries in every county failed passage that year. (His bill permitting two grand juries in any county passed in 1972 but was vetoed by Gov. Ronald Reagan.)
In 1971, grand jury reform was a hot topic.
“One of the oldest English institutions, the grand jury, has gained considerable attention in the 1971 legislature,” according to Joe Brooks’ column, syndicated by Copley, and published in newspapers on varying dates in October. The column continues:
“No less than four proposed constitutional amendments and 10 bills dealing with various aspects of the venerable institution were introduced this year.”
There was a new effort by Schabarum, and his bill passed. Originally, it would have amended Penal Code §904.5 to mandate the establishment in Los Angeles County of both a civil and criminal grand jury, but it was diluted through amendments. The major change was to retain the permissive nature of the code section.
Schabarum’s bill originally provided that members of a criminal grand jury would be drawn randomly from the list of trial jurors—in contrast to the traditional system of choosing grand jurors through random drawings of names from among those put in the hopper through recommendations of Superior Court judges. The proposal was in conformity with what Younger had been urging, as a means of broadening the perspective from that of retired businessmen. However, the bill was amended, along its path, to retain the presiding judge’s discretion as to the method of selection. Also, the presiding judge could now order empanelment of a second grand jury without a request of the county’s or the state’s top prosecutor.
A Nov. 28, 1971 article in the Times bears the headline, “1972 Forecast: 2 Grand Juries for L.A. County,” and reports:
“Los Angeles County probably will have two grand juries working simultaneously early next year for the first time in history.
“Legislation permitting a second grand jury with exclusive jurisdiction over criminal cases has been adopted and signed into law.”
Eight years had passed since Younger’s letter to the editor had been published. By now Younger was state attorney general.
The Times’s prognostication of implementation in 1972 proved to be off by several years.
Grand jury legislation was sought each year by Younger, as attorney general, starting in 1972. In 1974, he announced a third bid, attributing the defeat of his previous bills in committee to pressure from groups that wanted to abolish the grand juries, altogether. That year, he pushed for a mandatory dual grand jury system in larger counties. He also wanted criminal grand juries comprised of a cross-section of the community.
The Republican AG on April 8, 1977, appeared at a joint press conference with Democrats Ed Edelman, chair of the Los Angeles County Board of Supervisors, state Sen. Alfred H. Fong, chair of the Sen. Judiciary Committee, and Assemblyman Julian Dixon (later a member of the U.S. House of Representatives) to call for enactment of a grand jury reform bill. The bill, introduced by Song, would have required two grand juries in this county, alone, and members would be selected from voters’ lists.
Again: no success.
What did succeed was enactment of piecemeal legislation authorizing—but not requiring—two grand juries in individual large counties. An Aug. 25, 1993 attorney general opinion recites that “during the period 1970 to 1991, several counties were given the authority to have two grand juries, and the Legislature separated the functions for the two grand juries in different ways for these counties.”
As noted in an Oct. 29, 1975 U.S. District Court opinion, “Beginning on April 1, 1975, the defendant Superior Court Judges, acting pursuant to California Penal Code Section 904.6, divided the formerly unitary San Francisco grand jury into two grand juries, one essentially criminal and the other essentially civil.”
(The existence of two grand juries in San Francisco was not unprecedented. A May 22, 1886 California Supreme Court opinion refers to a statute providing for two grand juries in any county with more than three Superior Court judges. San Francisco qualified; Los Angeles, with two Superior Court judges—Anson Brunson and William A. Cheney—didn’t. By 1892, however, Los Angeles County did have sufficient population to rate more than three judges—six, in fact—yet, a Times editorial of Aug 28 notes that no grand jury had yet been empanelled that year, remarking: “It really seems as though the courts have been derelict in their duty.”)
While San Francisco and other counties exercised their authority in the 1970s and 1980s to create a dual grand jury system, Los Angeles County didn’t. Many were of the view that there were not a sufficient number of cases in which indictments were being sought to warrant a second grand jury. That view certainly had merit after the California Supreme Court’s controversial 1978 Bird Court ruling in People v. Hawkins that a person who is indicted has a right, like that of a defendant charged by way of an information, to a preliminary hearing. There had become little incentive for a prosecutor to seek an indictment.
In 1990, voters, through an initiative, wiped out Hawkins, restoring the status quo ante. Again, there was a call for a statewide system of a separate criminal grand juries.
The following year, legislation was passed wiping out the statutes relating to individual counties and amending §904.6—which had applied only to San Francisco—so as to authorize the presiding judge of the Superior Court in any county to order empanelment a second grand jury. That body would hear criminal matters, with jurors chosen “at random, from the list of trial jurors in civil and criminal cases
Younger did not live long enough to see the passage of that legislation. He died in 1989.
None of the presiding judges of the Los Angeles Superior Court invoked that statutory power until 2000. It was Victor E. Chavez who brought into existence here the system Younger had proposed in a letter to the editor 37 years earlier.
“I think it’s time, maybe overdue. We need two grand juries.”
The first names of criminal grand jurors were drawn on July 5, 2000. Bifurcation of grand jury functions has continued since then.
The criminal grand jury now represents a cross section of the community. While the statute authorizing a second grand jury says it can sit for as long as a year, the general policy in Los Angeles County is to limit the service to about a month so that membership is not limited to retirees who don’t have jobs to which they need to return. The civil grand jury can devote full time to its watchdog function.
Younger has prevailed.
Copyright 2008, Metropolitan News Company