The American grand jury dates back to Pilgrims and Plymouth
Rock. While its history in San Benito County is much less
grandiose, it has managed to stir up considerable controversy with
the recent indictment of eccentric Los Valientes lawyer Michael
Pekin.
Hollister – The American grand jury dates back to Pilgrims and Plymouth Rock. While its history in San Benito County is much less grandiose, it has managed to stir up considerable controversy with the recent indictment of eccentric Los Valientes lawyer Michael Pekin.
Members of the local bar association pointed to the way District Attorney John Sarsfield has used his criminal grand jury as one of the key reasons they lodged a vote of no confidence in the prosecutor last week. But the grand jury system has a long and storied history.
Grand juries, which serve both a civil and criminal function in the modern legal system, began in England in the 12th century. The proceedings were made secret to protect against abuse from tyrannical kings – a function that was adopted and woven into the American Constitution and has remained ever since, according to the Florida State University Law Review.
While the grand jury’s secrecy continue to stir controversy, its inherent purpose is to create a barrier for overreaching prosecution and provide another level of protection for criminal defendants, said Evan Lee, law professor at the University of California Hastings College of Law.
Prosecutors have the ability to charge someone with a crime by filing what is called an “information” – which is the common way people are charged in the justice system, Lee said. But by using a grand jury to indict someone, instead of one person such as a district attorney initiating a criminal proceeding, 19 members of the community decide whether someone should be charged, Lee said.
However, grand juries are completely secret and the prosecutor serves as both the prosecutor and judge – the person under investigation is not allowed to argue in their defense or even be present during the proceedings. The prosecutor has total discretion to call witnesses, question them and issue the jury instructions before they vote on an indictment – all without any objections by a defense attorney or a judge, Lee said. Because of this freedom, grand juries have been abused by prosecutors throughout American history, he said.
“You can go on a fishing expedition, you can pry into someone’s life – the whole time being very secretive about what the person is being accused of,” Lee said. “It’s a controversial point, and I don’t know if it’s a good thing or not. I don’t think there’s been a lot of empirical research on it. But it is in the US Constitution.”
In California, 28 of the 58 counties have criminal grand juries, according to Bill Larsen of the Santa Clara County District Attorney’s Office. They are largely used today to deal with highly sensitive cases or those where a prosecutor may be uncertain whether criminal charges are appropriate, said Fred Herro, adjunct law professor at the Monterey College of Law.
In San Benito County, Sarsfield initiated a standing criminal grand jury a year ago. Grand jury members returned their first indictment last March against a man for felony assault against a police officer and the second in October against employees of the now defunct Hollister business Central Valley Circuits, which was accused of dumping toxins into the Hollister sewer system. The third arrived last week when Pekin was indicted for conspiracy to obstruct justice, falsifying evidence, pursuing frivolous lawsuits and attempting to elicit perjury, among others.
In neighboring Monterey County, grand juries have been used sparingly – Herro couldn’t recall if one indictment was returned at all last year. But in the past, Monterey grand juries have presided over cases such as a sensitive drug sting involving undercover police officers whose safety could be jeopardized if their identities were revealed, he said. They have also been used for cases involving police officer shootings, sensitive sexual assault cases, such as incest, or for cases involving public figures.
While everything in a grand jury up to an indictment is kept away from public scrutiny, once an indictment is made the proceedings, along with the grand jury transcripts, are made public and the person indicted is free to challenge the grand jury’s ruling, Herro said. The defendant can file a motion to dismiss the indictment and present evidence to a judge in an attempt to have it thrown out, he said.
In almost every case, grand jury indictments are challenged, but Herro said in his 35 years of practicing law, he’s had six cases by way of grand jury and not one was completely overturned through a challenge.
“You can challenge proceedings as not being properly conducted or based on insufficient evidence. You can make all the objections you would have made had you been there,” he said. “You have recourse.”
Pekin is sentenced to be arraigned, where he will enter a plea of guilty or not guilty, on March 15. After his arraignment he will be given a copy of the transcripts and then most likely file a motion to dismiss the indictment based on information provided in the transcripts, he said.
Erin Musgrave covers public safety for the Free Lance. Reach her at 637-5566, ext. 336 or em*******@fr***********.com
