By Bob Egelko
California's first-in-the-nation law requiring prosecutors, rather than secret grand juries, to decide whether a police officer who kills someone should be charged with a crime has been struck down by a state appeals court.
The law, supported by defense lawyers and civil rights groups and opposed by prosecutors, took effect in 2016. It followed decisions by closed-door grand juries not to indict officers in the deaths of two unarmed black men, Michael Brown of Ferguson, Mo., and Eric Garner of Staten Island, N.Y., prompting demands that such decisions be made publicly by elected district attorneys.
But the Third District Court of Appeal in Sacramento said Tuesday that the law interferes with a county grand jury's authority, established by the California Constitution in 1879, to issue an indictment after receiving evidence of a felony.
"The Legislature does not have the power to enact a statute that limits the constitutional power of a criminal grand jury to indict any adult accused of a criminal offense," Justice M. Kathleen Butz said in the 3-0 ruling. Otherwise, she said, lawmakers could go further and eliminate a grand jury's role in all criminal cases.
The ruling preserves the long-standing system in California of allowing prosecutors to submit criminal cases to a grand jury for indictment or file charges on their own. The U.S. Constitution, by contrast, requires a grand jury indictment for any federal felony charge unless the defendant waives that right.
El Dorado County District Attorney Vern Pierson, who challenged the law, said Wednesday that the legislation was a product of "antipolice rhetoric sweeping the country ... fueled by some misguided politicians, by special-interest groups and by false news stories."
Referring to killings by officers, Pierson said, "Occasionally, these very difficult cases need to be investigated by a grand jury because the public is entitled to a comprehensive, professional and transparent investigation into all criminal activity."
But supporters of the law made the opposite argument -- that referring cases to secretive grand juries enables prosecutors to avoid accountability -- and the court said they had a point.
Butz, in her ruling, quoted the bill's author, state Sen. Holly Mitchell, D-Los Angeles, who said that the criminal grand jury system "lacks transparency," and that openness and accountability "are key to establishing and keeping" public trust in the system.
But Butz said legislators could enact laws to make criminal grand juries less secretive. She said they could also adopt a state constitutional amendment and submit it to the voters, although that would appear unlikely, as such amendments require two-thirds majorities in both houses and Mitchell's bill narrowly won passage in both the Assembly and state Senate.
The court case came from South Lake Tahoe, where a police officer responding to reports of suspected domestic violence at a motel in June 2015 fatally shot a man who was climbing out of a bathroom window, and who proved to be unarmed.
To challenge the state law, Pierson, the district attorney, held onto the case until January 2016, then convened a grand jury and issued subpoenas to officers and others involved in the incident. Before the jury could convene to consider possible charges, a Superior Court judge ruled the subpoenas invalid and dismissed the panel, prompting an appeal that led to Tuesday's ruling.
The officers or the state attorney general's office could seek review in the state Supreme Court. David Mastagni, a lawyer for the officers and their police association, said they haven't decided whether to appeal but were willing to proceed under either SB227, Mitchell's bill, or the former system.
"We just want to have a fair and open system so the public gets to know what's going on," he said.
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