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Toothless tigers?

Modern grand juries are limited in what they can really do


By all accounts, for most of the year things meshed fairly smoothly for county grand jurors. Then, in the final month of its existence, the 19-member panel nearly imploded. Before the bloodletting was over, numerous jurors had departed, only some voluntarily, and the alternate pool was empty.

Those who remained busied themselves with the harvest of their labors, preparation of the "final report" of the 2002-03 San Luis Obispo County grand jury, with just enough members remaining to ratify their own investigative results.

"With that many people, it is expected that you will not have unanimity all along the line. Nor do you want that," said Kip Chase, foreman of the 2002-03 panel.

Since grand jury proceedings are veiled from public view, it is uncommon for anecdotal accounts to surface because members, once discharged from their duties, remain bound by the oath of secrecy.

Harold Tune, a Morro Bay resident who served on the 2002-03 grand jury, was willing to acknowledge there were some "internal" problems toward the end of the panel’s year-long deliberations.

"It was a really close group of people who got to know one another very well," said Tune, 80. "It was great until last month, when things started to happen."

Tune said there were "two basic groups, and there was some separation at that time. The factions had some big differences."

One group was interested in appeasement, "wanting to make everything look rosy. The other group was anxious to get out the facts," said Tune.

The issue that faced the 2002-03 jury was an ancient bugaboo, one that has bedeviled citizen panels of this sort since the concept was started: How much power and authority should a grand jury exercise, and how extensive should its crime-busting efforts be? Is a grand jury simply an administrative extension of the county district attorney’s office, rubber-stamping cases rather than vigilantly seeking out miscellaneous miscreants and bungling bureaucrats?

That question hung heavily over the 2002-03 jury, and toward its conclusion its members were torn by their different perceptions of the issues.

So, what is a grand jury, and why should anyone care what it does, or if it even exists?

Grand juries, in their ideal form, provide an opportunity for the citizenry to have a direct voice in the administration of government. They’re a buffer between the people and corrupt public officials, and offer a solution to often-frustrating efforts to root out and remove crooks from the public payroll. They operate in complete secrecy, ostensibly to protect the subjects of their investigations, and to allow a freewheeling examination of interesting and important issues.

Remarkable in its concept, the grand jury is considered–by some, anyway–a protector of the citizenry against arbitrary prosecution. It is a system that gives to ordinary citizens the opportunity to be involved in criminal justice.

Grand juries are constitutionally mandated; a clause in the Fifth Amendment establishes grand juries for the protection of citizens against oppression by the government.

In California, the civil grand jury also invests in citizens the right to investigate the use and abuse of tax dollars by public employees.

This is one of the initial forms of self-government, originating as a way of balancing the autocratic rule of the king with the needs of the populace. Over decades and centuries, the monarchy allowed the citizen-run system to take root, making the royal mistake of thinking juries could be controlled by kingly whim and nefarious means, if necessary.

The 17th-century colonists had grand juries, bringing the concept with them after escaping England. The Massachusetts Bay Colony first used the grand jury system in 1635 to consider cases involving murder, robbery, and wife-beating.

California has had the system in place since the day the state was founded. The institution isn’t used in every state, however; only about 30 use one form or another.

And the Golden State’s system, despite derision sometimes tossed its way, goes further than any other toward involving ordinary citizens in the process of justice.

Occasionally, a "special" grand jury will be impaneled to deal with a criminal investigation. But while a jury can peruse a wide variety of topics–in fact, within reason, it can probe whatever a majority chooses–most are under the rigid control of the district attorney and the county counsel. The district attorney, placed before the voters on a regular basis, neither needs nor wants any competition for headlines from a gaggle of grand jurors. As a result, grand juries as bodies tend to follow the flow established by their attorney mentors. And the subject matter of a jury’s investigations is similarly guided.

Nineteen people–the number of grand jurors–seeking consensus always provides some complications. Personality differences often help to create cliques, which tend to divide into philosophically similar camps. And although only 12 members need agree to decide an issue, that number is not always easy to reach.

As the 2002-03 SLO County grand jury entered its frantic final months, its two diverse and warring factions picked up the pace.

"By that time," said Tune, "people had jockeyed around to get into positions of control. And there was a tendency among some to want to gloss over the important issues."

California’s Penal Code allows grand juries the power of subpoena, and requires certain activities from each. First, a jury is to "inquire into the condition and management of the public prisons within the county; then, to investigate and report on the operations, accounts, and records of county officers, departments or functions; to inquire into the willful or corrupt misconduct in office of public officers; and to submit a ‘final report’ with recommendations."

While the target agencies are required in turn to respond to proposals from the grand jury, those agencies are under no obligation to implement any of them. This has the result of diminishing the impact of the grand jury, because wily bureaucrats know the difference between the words "suggestion" and "mandate."

While California’s grand jury system is unique among others in the national arena, the power of any panel ultimately is intractably wedded to the intent and–in many cases–the professional and personal agenda of the grand jury’s guru: the district attorney’s deputy into whose purview responsibility for the panel has fallen.

"There was pretty much a mandated list of subjects" for the 2002-03 jury to probe, said Tune. "We only did one on our own, that the members selected."

That was an exam of Atascadero State Hospital’s Sexually Violent Predator (SVP) program, a lightning rod for controversy since initiated by the state in 1996.

The grand jury grandly decided results of treatment for SVP patients "are not clear," and that was that. The inquiry was intended to provide a grand jury-authored explanation of the program to the public, nothing more. No recommendation was even made.

Grand juries, for all their secrecy and television-inspired romance, are not generally all that exciting in the real world, performing the mundane chore of looking over the shoulders of bureaucrats and trying to comprehend the intricate workings of the civil service universe. And the panelists need to accomplish all that in a very, very short period of time.

As a result of inherent limitations, these particular watchdogs tend not to be the snarling, snapping, foaming-at-the-mouth, crusading kind, but rather a pack wizened and worn, with blunted teeth and a muted roar.

Take, for example, the work product of the recently disbanded jury panel. Its table of contents includes these investigative coups: "Few problems exist in San Luis Obispo jail; Cuesta College associate degree nursing program adjusts well to a change in admission policy; Sexually Violent Predators (SVP) Act is effective–but with reservations; Planning Department is trying to make life easier for its customers."

Not exactly the stuff of which nail-biters are made.

But there was at least one exciting investigation in 2002-03, though some jurors disagree as to the eventual results.

For example, the jury examined the controversy surrounding the Grover Beach Police Department and its former police officer, Todd Miller. The jury was acting on Miller’s request to investigate his ongoing battle with city officials.

Miller and the city are locked in arbitration stemming from Miller’s 2001 firing, reportedly because of his zeal in arresting drivers under the influence of drugs or alcohol. The panel probed the department’s record on firearm proficiency; studied protocol for impounding vehicles of persons arrested for DUI; criticized some elements of police management, and praised others.

"In the end, the jury did nothing to investigate my allegations," said Miller, who said he was disciplined by police brass for arresting politically connected people for driving drunk.

"We are limited to government analysis in this county," said Kip Chase, foreman of the 2002-03 jury. "State, federal affairs … we don’t do it. But if something pertains to any public agency in the county, cities, special districts, police and sheriff … we have a lot of authority, yes, but it is limited."

Chase said he was limited in what he can say, because a grand juror’s oath "is for life."

But he didn’t hesitate to parse the problem in San Luis Obispo County, as he sees it.

"The main difficulty, as far as we were concerned, is that we had no authority as far as enforcement," Chase said. "If we discovered some misbehavior, all we could do is note what we discovered, and make a recommendation. That is a cause of frustration. Of course, nothing we uncovered or investigated last year turned out to be an explosive issue."

He agreed the panelists were deeply divided on certain issues, but was reluctant to say which caused conflict.

"I can’t say I’d never do it again, but I can say I really need a rest," said Chase.

In contrast to the reported friction surrounding grand jury activities this year, things are said to have meshed more smoothly for the 2001-02 Grand jury, according to its foreman, Don. R. Blythe.

"The group’s last day together was nostalgic," he said. "Everyone left, though, with the feeling that they had given something to the community that was really worthwhile. Hopefully, that will be the case when we see if progress takes place this year on our recommendations–if they are accepted and implemented by the various agencies affected."

Blythe, a retired retail executive who graduated from San Luis Obispo High School in 1955 and then departed the county, said he felt the need to "give something back" when he and his family returned to Templeton several years ago.

"I didn’t really know anyone in the county, but I knew I wanted to do something that had some benefit to others," said Blythe, adding that those feelings were shared by all of his grand jury contemporaries.

Like Blythe, the majority of grand jury candidates are retired.

"There is such a demand on time, most people who are working just can’t do it," Blythe said. "This is not a small-time commitment, by any means." But he thinks the experience and life opportunities that each juror possessed contributed greatly to his group’s overall process.

Most jurors spend 20-30 hours a week doing the job. Each spends many hours reading manuals, publications, and technical papers from various agencies.

"We would meet twice a week formally, and those meetings lasted up to five hours each," Blythe said.

"We met challenges together," he added, as each member realized that the panel’s "only real power lies in getting the public to view its recommendations, and to put pressure on the powers that be to do something about it."

Blythe and his fellow jurors will have to wait on that, because retrospection is lagging. The "final report" now circulating publicly looked only at recommendations of the 1998-99 grand jury, and found that "overall, the responsible agencies and their governing bodies have made a good faith effort in implementing their commitments to [jury] recommendations."

Superior Court Judge Jeffrey Burke, who has served as presiding judge for SLO County grand juries, would often tell jurors that their job was "merely to put the bright spotlight on an area where improvement can be made."

After that, as always, it’s up to the public to affect any changes necessary. Æ

New Times News Editor Daniel Blackburn can be reached at

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