Demystifying Santa Clara County’s Grand Jury System

PUBLISHED JUN 8, 2021 12:00 A.M.
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Like most California counties, Santa Clara County empanels not one, but two grand juries.

Like most California counties, Santa Clara County empanels not one, but two grand juries.   Eugene Zelenko / Wikimedia Commons   Creative Commons Attribution-Share Alike 4.0 International License

The grand jury system remains one of the most obscure and least-understood—and at the same time, most important—pieces of our legal machinery. That may be because, while trials must be public, under the Sixth Amendment to the United States Constitution, no such requirement applies to grand jury hearings. In fact, under both federal and California law, grand jury proceedings must be kept secret.

As a result, the public is kept largely in the dark not only about what grand juries do, but how they work. The basic facts are simple. While a trial jury—which, believe it or not, is technically called a “petit jury”—is composed of 12 people selected from the local community, who serve only as long as the duration of a trial, the grand jury is 19 strong and convenes for three months at a time. Grand jurors are also picked from the community, selected from the list of available trial jurors.

Grand juries deliver criminal indictments. That much is well-known, and written into the Constitution's Fifth Amendment. But what is not as widely understood is that in Santa Clara County, as in most California counties, there are two differing grand jury systems.

One hands down indictments for felony crimes. The other, however, is known as the Civil Grand Jury, and its job is to investigate the government itself. 

The Civil Grand Jury is essentially a watchdog body, composed of 19 citizen volunteers, which examines the operations, and finances, of county agencies, as well as those of cities within Santa Clara County, and the county’s various school districts as well. In smaller counties, a single grand jury may peform both the civil and criminal functions. But in many larger California counties, such as Santa Clara, they are two separate bodies. On the other hand, in Orange County—the state's third-largest—a single grand jury performs both civil and criminal roles

The Civil Grand Jury actively recruits members, who will serve for a full year. The application deadline usually falls in April, for the upcoming Grand Jury term. Shortly after grand jurors are seated, and the term begins on July 1, recruitment for the following year's Grand Jury begins.

Any Santa Clara County resident can apply—the online Grand Jury Application and Nomination Form may be found at this link—and civil grand jurors should expect to spend between 10 and 30 hours per week on grand jury activities and investigations, according to a report by Peter Hertan, Michael Kray, and Harry Oberhelman of the Mercury News.

Civil grand jury service pays a stipend of $20 per day, plus a mileage reimbursement.

The civil grand jury is empowered to investigate just about any aspect of local government, and can initiate investigations in response to citizen complaints, or issues of concern to individual jurors, according to the Merc report.

The body can even undertake misconduct or corruption investigations against public officials—including the county supervisors themselves—which could result in those officials being removed from office.

But unlike the criminal grand jury, the civil version does not issue indictments. Instead, it writes reports. Though the proceedings are confidential, those reports are made public—and the public can access an archive of Santa Clara Civil Grand Jury reports online, via the county’s Superior Court website.

The criminal grand jury functions a little differently. Rather than starting its own investigations, proactively, the grand jury for criminal cases acts only on cases handed to it by the district attorney, who since 2011 in Santa Clara County has been Jeff Rosen.

Though it will be rare for Rosen, who heads the largest D.A.’s office in the state north of Los Angeles, to make cases to the grand jury himself, one of his 196 deputy district attorneys will likely be present in the grand jury proceedings to present evidence, question witnesses, and otherwise guide the proceedings to an indictment.

The criminal grand jury process, unlike a criminal trial, is not a two-sided affair. Its only purpose is for prosecutors to secure indictments. Defendants do not have any opportunity to make their cases, or even appear—or for that matter, to know that the grand jury proceedings are going on.

Grand juries handle only felony cases. Misdemeanors do not require indictments. But the range of felonies that could come before a grand jury is extensive, from gang-related murders, to Silicon Valley cyber crime, to rape and sex trafficking, and to political corruption. In 2013, following an investigative report by Metro Silicon Valley, the criminal grand jury indicted then-Supervisor George Shirakawa, who later pled guilty to “a dozen charges involving the use of more than $100,000 in taxpayer and campaign donor funds to feed his gambling habit,” according to the Merc.

A British Invention

Though the U.S. grand jury system was created by the framers of the Constitution, the practice of empaneling grand juries dates back centuries, to traditional English law. The earliest origins of the grand jury system are believed to date back to an edict by England’s King Henry II, who issued a set of laws collectively titled the Assize of Clarendon in 1166.

The idea of jury trials was still a couple of centuries away at that time. Most trials were conducted by “ordeal,” the details of which for now may be better left to the imagination.

But within about 200 years, the “ordeal” system had given way to trial by jury. To prevent unfair accusations leveled by local officials, a “grand inquest”—later to be known as a grand jury—was tasked with gathering evidence against accused criminals, and making official accusations on behalf of the king.

The grand jury system traveled to the New World, and was used in the American colonies. When the colonies broke away and formed the United States, the Founding Fathers considered the grand jury system a vital check on the government’s power of prosecution, leading them to enshrine the grand jury requirement in the Constitution.

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