Metropolitan News-Enterprise


Monday, October 2, 2017


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Court of Appeal:

DDA’s Excusal of Grand Juror Requires Dismissing Indictment


By a MetNews Staff Writer


The Third District Court of Appeal on Friday issued a writ ordering that an indictment be dismissed because a deputy district attorney excused a potential grand jury because she just found out her employer wouldn’t pay her for five days of service and she needed the money.

“The deputy district attorney’s exercise of authority he did not have over the grand jury, in front of the grand jurors, was not harmless,” Justice Jonathan K. Renner declared. “ It was a fundamental misunderstanding of the prosecutor’s role that damaged the structure of the grand jury process and the independence of the grand jury itself.”

Renner rejected the view of San Joaquin Superior Court Judge Stephen G. Demetras who, in denying a motion pursuant to Penal Code §995, said that while “everybody agrees” that the deputy district attorney “kicked off a juror improperly,” the defendant has not “shown any actual prejudice here” because there was the required vote of at least 12 grand jurors to indict.

Usurped Judicial Authority

The Third District justice said:

“By deciding that Juror No. 15 should be excused for hardship, the deputy district attorney used authority of the judicial branch. It is unclear from the limited record before us whether the superior court would have agreed that Juror No. 15 should have been excused for ‘undue hardship.’…We will never know because the court never decided the issue. The fact that the excused juror was not replaced suggests the court was not made aware of what happened, effectively preventing the drawing of another grand juror who might have impacted deliberations.”

The action means that the indictment of Darren Williams for committing a series of robberies of cellphone stores will be scrapped, but a new indictment may be sought, or an information filed.

Earlier Case

Renner notes that the California Supreme Court presently has before it, in Avitia v. Superior Court, the question of whether a deputy district attorney’s dismissal of a grand juror—in that case for bias—constituted a denial of a “substantial right” of the defendant. He does not mention that he wrote the opinion in that case, and declared there that a writ need not issue.

He said, in Avitia, filed April 18:

“On the record presented in this case, we conclude the deputy district attorney’s error was not structural, and petitioner has failed to demonstrate he was denied a substantial right or that the error substantially impaired the independence and impartiality of the grand jury. Accordingly, while the prosecutor’s violation of statutory requirements is troubling, the trial court’s decision to deny petitioner’s motion was not error, and we shall deny his petition for writ of mandate.”

Contrary Facts

One factor that was different in Avitia was that there, the excusal did not take place in front of other jurors. Renner said in that case:

“There is no evidence the deputy district attorney’s actions changed the composition of the jury in any manner other than that which was already inevitable. There is also no evidence the other jurors knew Juror No. 18 had been instructed to leave. They could only guess what the deputy district attorney said or did (if anything) that led to the disappearance of their fellow juror. On this record, the trial court did not err in concluding the prosecutor’s actions did not deny petitioner a substantial right or substantially impair the independence and impartiality of the grand jury.”

In the case decided Friday, Juror No. 15 was given permission to leave in the presence of other grand jurors. Renner said:

“The prosecutor’s actions…allowed the remaining jurors to mistakenly believe the prosecutor had legal authority to approve a hardship request. Thus, the deputy district attorney expanded his power over the grand jury proceedings and the grand jurors themselves. Instead of merely providing information or advice…, he asserted actual control over them. If this case involved a petit jury instead of a grand jury, we are confident these same facts would produce justifiable outrage by the court and opposing counsel. But here, the possibility of an objection was structurally foreclosed: The court was not present and grand jury proceedings necessarily exclude defense counsel.”

The case is People v. Williams, 2017 S.O.S. 4898.


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