SAN JOSE, Calif. — A year after a grand jury declined to prosecute a Ferguson, Mo., policeman for the death of an unarmed black man whom he claimed attacked him, Gov. Jerry Brown signed legislation Tuesday making California the first
SAN JOSE, Calif. — A year after a grand jury declined to prosecute a Ferguson, Mo., policeman for the death of an unarmed black man whom he claimed attacked him, Gov. Jerry Brown signed legislation Tuesday making California the first state in the nation to ban the use of a grand jury in officer-involved incidents that result in the death of suspects.
The ban, which will go into effect Jan. 1, comes after panels in Ferguson and Staten Island, N.Y., made controversial decisions in secret hearings not to bring charges against officers who killed unarmed black men, sparking protests across the country. Calls for transparency also have come amid national concerns about disparate treatment of blacks and other racial minorities when encounters with cops turned deadly in Baltimore, Cincinnati and South Carolina.
“What the governor’s decision says is, he gets it — the people don’t want secrecy when it comes to officer-involved shootings,” said retired judge and former San Jose independent police auditor LaDoris Cordell, the first African-American appointed as a judge in Northern California and a key supporter. “We’re not trying to get more officers indicted, we’re saying, ‘Whatever you decide, do it in the open. I applaud Governor Brown for doing the right thing and sending a message to all Californians that his administration wants our criminal justice system to be fair, transparent and accountable.”
The ban accomplishes officially what most California district attorneys are doing already — deciding themselves whether to bring criminal charges against police officers rather than presenting evidence to a secret grand jury and letting the panel decide. Only one other state — Connecticut — bans the use of grand juries for criminal indictments, but that umbrella taboo dates back to the early 1980s and has nothing to do with the current protests over the treatment of people of color by police. No other state bans the use of grand juries specifically for officer-involved deaths.
Supporters of the ban, including the author of the legislation, Democratic state Sen. Holly Mitchell, argued that Senate Bill 227 is necessary to stop even limited use of the grand jury option and help restore trust in the criminal justice system. They contended that using a grand jury to decide if there is probable cause to bring charges against cops serves mostly as political cover for district attorneys reticent to impugn the police officers with whom they work closely and depend on for crucial political support. No judges or defense attorneys participate in the grand jury process and in California, transcripts of the hearings are sealed unless someone is indicted or a judge grants permission for their release.
Mitchell, who is African-American, called the ban “an important first step in ongoing efforts to build public trust, transparency and accountability, in an atmosphere of suspicion that compromises our justice system.”
But the California District Attorneys Association and the California Police Chiefs Association opposed the ban, saying the grand jury should be preserved as an option. Imposing a blanket prohibition would discriminate against peace officers on the basis of their occupation, they argued. The association suggested that the Legislature could increase transparency by allowing grand jury transcripts to be released in cases where no one was indicted.
Mark Zahner, CEO of the California District Attorneys Association, said putting the decision in the hands of prosecutors doesn’t increase transparency, though some district attorneys issue reports explaining their rationale. Either way, he said, “It’s absolutely ludicrous to espouse or believe that police officers get treated any differently than anyone else.”
Under the ban, district attorneys starting next year will be required to weigh the evidence against police officers and decide whether to file criminal charges, as they do against the vast majority of all suspects, not just cops. Cases are then vetted by a judge, who hears from both prosecutors and defense attorneys at a preliminary hearing before ruling whether the matter should go to trial. Nearly all felony prosecutions in California are handled via such preliminary examinations. If the decision by the district attorney not to file charges in an officer-involved shooting is unpopular, voters will have recourse at the next election.
Many of California’s 58 district attorneys already decide whether to file charges against police officers themselves, including in Santa Clara and Los Angeles counties. Santa Clara County District Attorney Jeff Rosen, who has not filed homicide charges against any officers since taking office in 2011, has issued lengthy reports laying out the reasons for his decisions. However, Rosen also joined his fellow district attorneys in opposing the ban.
More than 400 people were killed by officers in California in the 2 1/2 years from January 2014 through July of this year, authorities estimate. No figures are available on how many were ever charged, if any. It is rare for an officer to face criminal charges because prosecutors must be able to prove “beyond a reasonable doubt” that the officer acted criminally, rather than in self-defense. California law also allows an officer to use deadly force against a fleeing person if the officer believes the suspect has committed a violent felony and his or her escape would pose a significant and serious threat.
Even when a case is brought to trial, officers are rarely convicted. In 2004, the last time an officer was charged in Santa Clara County, for instance, a grand jury in a rare open proceeding indicted state Bureau of Narcotics Enforcement agent Mike Walker on criminal charges in the fatal shooting of Rudy Cardenas, who he had mistaken for a wanted parole violator. In 2005, a jury acquitted Walker of voluntary manslaughter charges. However, the state paid nearly $1 million to settle civil lawsuits filed by his family claiming excessive force.
Support for the ban in the Legislature split along party lines, with four moderate Democrats joining Republicans to oppose it. Supporters include the California chapter of the NAACP, the ACLU and the Mexican American Legal Defense and Educational Fund.
