Man Gets Indicted By His Pacemaker

Actually, the case was indicted by a grand jury in Ohio, which charged him with arson and insurance fraud.

Apparently, the man called 911 as his home burned in the background. He said he was sleeping when the fire started and that, in a hurry, he packed a bunch of bags, broke a window with his cane, threw the bags out the window, and carried them away. He mentioned that he had a pacemaker.

The police came to suspect him of arson. They say they found gasoline on his shoes, pants, and shirt, and they believe the fire had multiple points of origin from outside the house.

So they got a search warrant for the data from his pacemaker. That gave them a historical record of his heart rate and rhythms before, during, and after the fire.

Reportedly, the data showed that the man was active when he was supposed to be asleep, and a cardiologist has said it was “highly improbable” that he could carry out the strenuous activities he described.

Two Sneak Peeks Inside a Grand Jury

It’s not every day that grand jurors write about their experiences, but here are two who did. Both recently served on grand juries in New York, and they offer competing takes on this corner of our justice system.

The first juror emerged from the experience with an awareness of the power of prosecutors, who dominate the process.

The second emerged with an appreciation for a grand jury’s role in checking that power.

But how independent are grand juries, really? Do they always vote to indict? Are they encouraged to do so? Expected, even? Pressured? Are they more than a rubber stamp?

Read on for some answers from two former grand jurors.

New California Criminal Laws: Do-Over

Speaking of new laws, last year we wrote about Senate Bill 227, which changed the Penal Code so that grand juries could no longer criminally indict or investigate a police officer’s deadly use of force. The stated rationale behind the law was that grand juries undermined the public’s trust in such cases because they lacked transparency and accountability. For more on grand-jury secrecy and the overall process, see here.

Well, never mind that new law because the California Court of Appeal just threw it out.

The Court held that the Legislature could not, by statute, restrict the power of grand juries to indict or investigate criminal cases because that power flowed from the state’s Constitution.

“The Legislature is not powerless to remedy the problem it has identified. It may submit a constitutional amendment to the electorate to remove the grand jury’s power to indict in cases involving a peace officer’s use of lethal force. It could also take the less cumbersome route of simply reforming the procedural rules of secrecy in such cases, which are not themselves constitutionally derived or necessary to the grand jury’s functioning….”

New California Criminal Laws in 2016

Happy New Year! And with it, here are five important criminal laws that went into effect.

Courts must report prosecutors for bad-faith Brady violations. This is Assembly Bill 1328. It amends the Penal Code to provide that a court must report a prosecutor to the State Bar who it finds, by clear and convincing evidence, has deliberately withheld exculpatory evidence in bad faith, and the violation either contributed to your conviction or seriously hindered your ability to defend yourself. The court may also disqualify the prosecutor from the case, and if it does, the defense may move to disqualify the prosecutor’s entire office if there is enough evidence that other employees shared in the bad faith as part of a pattern and practice. See Pen. Code § 1424.5; Bus. & Prof. Code § 6068.7(a)(5).

The police must get a new type of warrant to search your electronic data. This is Senate Bill 178. It amends the Penal Code to require a special court order before a government agent or entity can search your data in electronic devices or the cloud, including your emails, text messages, and location data. There is an exception if the government believes in good faith that it needs the data to address a life-threatening emergency, but even then, the government must apply for a warrant within three days. Other rules require it to seal, retain, or destroy your data depending on what it finds and to notify you of what it’s doing. If the government doesn’t follow these rules, you can move to exclude the evidence it obtained as a result. See Pen. Code §§ 1546, 1546.1, 1546.2 & 1546.4.

The public has a right to record the police. This is Senate Bill 411. It amends the Penal Code to confirm that you can’t be stopped for or charged with resisting or obstructing a police officer (or public official) if the officer or official is in a public place or if you have a right to be there. See Pen. Code §§ 69(b) & 148(g).

Grand juries will no longer investigate or indict cases involving police shootings or the use of deadly force. This is Senate Bill 227. It amends the Penal Code to bar grand juries from indicting or inquiring into cases involving a police officer’s use of force that led to the death of someone he or she had detained or arrested. See Pen. Code §§ 917(b) & 919(c).

The state will collect and maintain more comprehensive data on police stops and profiling. This is Assembly Bill 953. It amends the Government Code to require that state and local law-enforcement agencies collect data on every police stop and report their data annually. The data must include the time, date, and location of the stop as well as the reason for it, what happened next, and the end result. The law also expands the definition of police profiling beyond race to include gender, religion, national origin, and sexual orientation. The largest agencies have until April 2019 to issue their first report while the smallest agencies have until April 2023, and those in the middle have until 2020 or 2022 depending on their size. See Gov’t Code § 12525.5; Pen. Code §§ 13012(a)(5) & 13519.4.

A Riff on California Grand Juries

The Grand-Jury Clause of the Fifth Amendment applies only to the federal government, not the states, but even so, about half of the states choose to require a grand-jury indictment in order to prosecute a felony case.

In other states, like California, prosecutors have the discretion to decide whether to proceed by indictment or by complaint, preliminary hearing, and information. See Cal. Const. art. I, § 14; Pen. Code §§ 737-40, 889, & 949. If they proceed by presenting the case to a grand jury and obtaining an indictment, there is no preliminary hearing. See Cal. Const. art. I, § 14.1.

Most counties in California, like Orange County, have 19-member grand juries. See Pen. Code § 888.2. Los Angeles County has 23-member grand juries because its population exceeds 4,000,000. Id. A 19-member grand jury needs twelve votes to return an indictment; a 23-member jury needs fourteen. Id. § 940. From the time they are impaneled, grand jurors typically serve one-year terms.

A grand jury may investigate both civil and criminal matters, including by investigating the fiscal or administrative affairs of the county in which it operates and reporting any public corruption or misconduct it finds. Any county may impanel a second, additional grand jury for these purposes, and Los Angeles County may impanel an additional two. See Pen. Code §§ 904.6(a) & 905.8.

In criminal matters, the standard to indict is probable cause: that is, whether the evidence would lead a person of ordinary caution or prudence to believe, and conscientiously entertain, a strong suspicion of the guilt of the accused. Pen. Code § 939.8. See Cummiskey v. Superior Court (1992) 3 Cal. 4th 1018, 1027-29. That’s the same standard used at a preliminary hearing to hold a defendant to answer the charges and bind him over for trial.

Generally, the government may not present inadmissible evidence to a grand jury, including hearsay. See Pen. Code § 939.6. See also People v. Superior Court (Mouchaourab) (2000) 78 Cal. App. 4th 403, 424-25. There’s an exception to the rule against hearsay, however, for the testimony of qualified law-enforcement officers who relay the hearsay to introduce and authenticate documents, exhibits, or other physical evidence for the grand jury to consider. Pen. Code § 939.6(c). Even if the grand jury receives inadmissible evidence, moreover, its indictment will survive if it’s supported by enough admissible evidence. Id. § 939.6(b).

If the government becomes aware of exculpatory evidence, it must inform the grand jury of its existence, and it must inform the grand jurors of their duty and power to order the production of such evidence if they have reason to believe it will explain away the charge. See Pen. Code §§ 939.7 & 939.71. See also Johnson v. Superior Court (1975) 15 Cal. 3d 248; McGill v. Superior Court (2011) 195 Cal. App. 4th 1454, 1464, 1517 (adding that the government may not tread on the grand jury’s independence by attempting to dissuade or discourage it from considering such evidence).

If the government fails to do that, and its failure causes substantial prejudice to the defense, the court can dismiss any part of an indictment that was based on the evidence. Pen. Code § 939.71. See Berardi v. Superior Court (2007) 149 Cal. App. 4th 476, 490-95 (explaining “substantial prejudice” as a reasonable probability that the grand jury would not have found probable cause to indict in light of the omitted evidence).

In general, grand-jury proceedings are secret. See Pen. Code § 915. All communications with grand jurors and witnesses must be placed on the record, but all grand jurors must take an oath to preserve the secrecy of the proceedings. Id. §§ 911 & 938. This oath is also administered to other participants in the proceedings, including court reporters, language interpreters, security personnel (in the case of an inmate-witness), and qualified support persons (in the case of a child-witness). See id. §§ 939, 939.11, & 939.21.

The oath of secrecy does not apply to witnesses, however. Although witnesses are often admonished by the prosecutor or the grand jury not to disclose their testimony or other information, the admonition alone does not carry the force of law in the absence of a court order, and it may be challenged on First Amendment grounds as a prior restraint on speech, which is subject to strict scrutiny by the courts. See San Jose Mercury News, Inc. v. Criminal Grand Jury of Santa Clara County (2004) 122 Cal. App. 4th 410, 414-18.

Sunlight, They Say, is the Best Disinfectant

Amid recent, controversial grand-jury proceedings in New York, Missouri, and elsewhere, one prominent criminal-defense lawyer, Harvey Silverglate, still favors greater use of grand juries, especially in cases that arouse popular passion, suspicion, or cynicism. He’s probably right. Mr. Silverglate, who also litigates civil-liberties cases, warns those who blame grand juries that the alternative in these cases isn’t better:

“While the grand jury’s decision not to indict may, to some, taste of injustice in this particular case, [we] should always be wary of wishing for a more zealous prosecutorial approach that … robs [citizens] of their rightful role in deciding who should, and should not, be charged with serious felonies.”

Instead, Silverglate argues for greater transparency in the grand-jury process—more than we have now in federal cases and the many states that shroud such proceedings in secrecy and forbid most participants from releasing testimony and evidence to the public.

It’s a little more complicated than that because grand juries perform more than one function: they’re not just empowered to indict; they’re empowered to investigate. Often, they perform both of these accusatory and investigative functions at once, but not always, and in the case of longer-running, more complex investigations, the need for secrecy may trump the need for transparency. In fact, if you’re the subject or target of such an investigation, you may even value that secrecy if and when the grand jury concludes no crime was committed, or if one was, that you didn’t commit it.

But purely investigatory grand juries are special cases, and it’s harder to argue against transparency in most other cases when the cat’s already out of the bag. That can happen in higher-profile cases like the ones that have captured our attention of late, or it can happen in everyday cases where the accused is arrested and arraigned on a criminal complaint.

In such run-of-the-mill cases, in federal court, the government must either go to the grand jury and get an indictment or put on a preliminary hearing within 14 days of the arraignment if the defendant is in custody or 21 days if he’s not. See Fed. R. Crim. Pro. 5(c). Even if the defendant waives his right to a preliminary hearing, the government must file an indictment within 30 days of the arrest. 18 U.S.C. § 3161(b).

If a defendant does not waive his right to a preliminary hearing, the federal government will almost always present the case to the grand jury to avoid having to put one on.

The reason for that is simple. A preliminary hearing means the defense is there to cross-examine the government’s case. See Fed. R. Crim. Pro. 5.1. The grand-jury process, by contrast, is one-sided: there’s no defense attorney in the room; there’s no cross-examination or presentation of defense evidence; and the jury may hear evidence in summary form, including hearsay.

The point here is that when a defendant has already been publicly arrested, accused, and arraigned on a complaint, it’s hard to see the harm in letting in some sunlight to keep people honest. Perhaps we could even devise a rule that allows local public defender’s offices to audit the proceedings. How’s that for crazy talk. A little quality control wouldn’t hurt, and it could bring more balance, as well as perception of balance, to the scales of justice.

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