Metropolitan News-Enterprise


Wednesday, June 1, 2011


Page 1


C.A. Throws Out Indictment, Says Grand Jury Was Compromised


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District Court of Appeal yesterday rebuked the Orange County District Attorney’s office for infringing on the province of the grand jury during an investigation into possible misconduct by Capistrano Unified School District officials.

Div. Three ordered the perjury indictment against retired Assistant Superintendent Susan McGill be dismissed since she was deprived of the protections she had been entitled to from a neutral, independent grant jury.

McGill retired from her position with the school district in June 2006, shortly before a grand jury began an investigation into possible misuse of public funds by then-Superintendent James Fleming.

Prosecutors alleged that Fleming had sent McGill and the school district’s public relations officer, David Smollar, to the county registrar of voters to compile lists of the names of individuals who had supported a recall of the school district’s board of trustees in 2005.

Not Target

McGill was among the very first witnesses to appear before the grand jury. The prosecutors conducting the hearing specifically advised her that she was not the “target” of the investigation and that there was “no expectation or intention” that any charges would be filed against her “as a result” of the investigation.

She testified that it had been her idea to go to the registrar’s office because she anticipated a lawsuit against the school district, and she wanted to know why some signatures on the petitions were invalid. Although McGill said she had informed Fleming of her activities, she denied giving any “report about the names” to her boss.

About a month after her last day of testimony, a memorandum—ostensibly from McGill to Fleming—was discovered. The cover sheet to the memorandum indicated that the attached “list of signature-gatherers” was being provided to Fleming “per your request.”

McGill was never asked to return to the grand jury to explain the memorandum, but her secretary was summoned to testify. After repeated questioning from prosecutors, the secretary allowed that she “probably” had prepared the memorandum and list of names at McGill’s behest.

‘Shocking to a Court’

In his opinion for the appellate court, Presiding Justice David G. Sills remarked that “the questioning of McGill’s secretary…reveals a process that, upon reading it, actually seemed a bit shocking to a court that normally reviews transcripts of proceedings overseen by judges” and suggested “[r]eaders who plow through this part of the opinion can judge for themselves whether or not ‘badgering’ is too strong a word.”

At the close of the investigation in May 2007, prosecutors asked the grand jury to return indictments against both Fleming and McGill, which it did. McGill was charged with perjury and conspiring with Fleming to misuse district resources to further their own personal purposes.

Sills noted that “what exactly McGill was alleged to have falsely told the grand jury under oath is not spelled out in the indictment,” and “to this day in 2011, the district attorney’s office has yet to actually quote the exact words which McGill uttered under oath and which the office claims she knew were false.”

He surmised that the district attorney’s office based its perjury count on the memorandum and McGill’s testimony that she had not provided a report to Fleming about the individuals who supported the recall petitions.

The indictment against Fleming—including the conspiracy charge against McGill—was dismissed by a trial court, which found he and McGill were within their lawful authority in compiling the lists. Div. Three upheld the trial court’s ruling, and that judgment is now final.

McGill also sought to have the perjury indictment against her dismissed, but her motion was denied by Orange Superior Court Judge William R. Froeberg.

In reviewing McGill’s appeal, Sills acknowledged “no less than a dozen and a half published cases around the United State that repeat the maxim that a grand jury would indict a ham sandwich if asked to by a prosecutor,” but declined to “rely on or adopt the ‘ham sandwich’ view of grand jury procedure.”

His decision, he said, was “grounded on the more idealistic view…that grand juries are supposed to play a protective, buffer role, and…that courts should examine grand jury proceedings so as to ensure the grand jury’s independence.”

Sills explained that “California law affords all persons two alternative sets of protections to prevent defendants from being required to unnecessarily undergo the trauma and expense of a criminal trial,” which are a preliminary hearing before a neutral magistrate, or an evaluation of the case by an independent grand jury.

The justice said Penal Code Sec.939.5 “requires a neutral grand jury going in to an investigation, not a grand jury that may already have a ‘state of mind’ in reference to a potential indictment.”

Allowing the grant jury to indict a non-target witness in the course of its investigation of someone else, Sills reasoned, would “short-circuit important protections that the grand jury procedure is designed to afford.”

Such a circumstance, he posited, would be akin to having “a judge in a regular trial who, thinking a witness has just lied on the stand, immediately requires that witness to stand trial for perjury without either a preliminary hearing or an independent grand jury investigation.”

Sills added that prosecutors infringed on the independence of the grand jury by not calling Smollar to testify and instructing the jurors “anything that he might or might not say is not relevant.”

He said that a district attorney’s office cannot “cause a grand jury to think that it would not be worth its while to call a given witness when that witness’s testimony is clearly relevant to the charges being considered.” The justice further emphasized the grand jury “had the right to request a judge to issue a subpoena to have Smollar examined,” and “the duty to make its own credibility determination as to whether McGill really had knowingly lied before handing down its indictment.”

The grand jury, Sills said, “had ample reason to believe that calling McGill back to get her explanation about the memo would explained away…the knowing element of perjury.”

Justices William F. Rylaarsdam and Eileen C. Moore joined Sills in his opinion.

The case is McGill v. Superior Court (People), G043778.


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