THE GRAND JURY PROCEEDINGS VIOLATED DEFENDANT’S DUE PROCESS RIGHTS
The grand jury’s ability to safeguard accused persons against felony charges which it believes unfounded is an attribute of due process of law inherent in the grand jury proceeding; this attribute exists for the protection of persons accused of crime before the grand jury, which is to say that it is a ‘constitutional right;’ any prosecutorial manipulation which substantially impairs the grand jury’s ability to reject charges which it may believe unfounded is an invasion of the defendant’s constitutional right.
(People v. Backus (1979) 23 Cal.3d 360, 392 [quoting the Court of Appeals opinion upheld by Johnson v. Superior Court (1975) 15 Cal.3d 248].) Indeed, “irregularities at grand jury proceedings should be closely scrutinized because protection of the defendant’s rights is entirely under the control of the prosecution without participation by the defense.” (Berardi v. Superior Court (2007) 149 Cal.App.4th 476, 495-496.)
During the first day of grand jury proceedings and on the record, two grand jurors made statements demonstrating they had prejudged the case and the defendants. Pursuant to Penal Code § 939.5, these grand jurors were required to withdraw from service. That section reads, in full:
Before considering a charge against any person, the foreman of the grand jury shall state to those present the matter to be considered and the person to be charged with an offense in connection therewith. He shall direct any member of the grand jury who has a state of mind in reference to the case or to either party which will prevent him from acting impartially and without prejudice to the substantial rights of the party to retire. Any violation of this section by the foreman or any member of the grand jury is punishable by the court as a contempt.
(Penal Code § 939.5 [emphasis added]; see also Packer v. Superior Court (2011) 201 Cal.App.4th 152, 163 [“all grand jurors have a statutory duty to withdraw from serving on a particular case if they harbor a bias or prejudice against the defendant”].)
For many years, California courts have held that a grand jury foreperson or biased juror’s failure to satisfy this statutory duty to withdraw is not a ground for setting aside an indictment. (See People v. Jefferson (1956) 47 Cal.2d 438, 442; People v. Kempley (1928) 205 Cal. 441, 448.) However, they have also recognized that improper grand jury proceedings may “result in a denial of a defendant’s due process rights, requiring dismissal of the indictment.” (Stark v. Superior Court (2011) 52 Cal.4th 368, 417 [emphasis added].)
Recently, the Second District Court of Appeal discussed at length the “unsettled issue” of whether a defendant has a due process right to an unbiased grand jury. (Packer, supra, 201 Cal.App.4th at pp. 158, 166-172.) In Packer, Grand Juror No. 2 was a secretarial employee of the High Tech Task Force that assisted in the police investigation of that case. (Id. at p. 159.) When questioned, she explained that she had handled some of the evidence, entering information about a seized computer into a Task Force system and putting the physical computer in an evidence room. (Id. at pp. 160, 162.) However, Juror No. 2 had no knowledge of the contents of the computer. (Id. at p. 162.) She also assured the prosecutor that there was nothing that would make it difficult for her to render an unbiased decision. (Ibid.)
The court surveyed both federal and state precedent, finding case law support on both sides of the question whether due process requires an unbiased grand jury. (Packer, supra, 201 Cal.App.4th at pp. 167-168.) Supreme Court precedent endorses the idea, at least as a rule in federal courts. (Compare Beck v. Washington (1962) 369 U.S. 541, 546 [“It may be that the Due Process Clause of the Fourteenth Amendment requires the State, having once resorted to a grand jury procedure, to furnish an unbiased grand jury.”], with Costello v. United States (1956) 350 U.S. 359, 363 [the Fifth Amendment requires a federal indictment to be “returned by a legally constituted and unbiased grand jury”]; see also United States v. Finley (N.D. Ill. 1988) 705 F.Supp. 1297, 1306 [reading the Supreme Court’s opinions to hold that “defendants in federal court do have a right to an unbiased grand jury”].) And California precedent suggests that any irregularity which “substantially impair[s] the independence and impartiality of the grand jury” violates due process. (Stark, supra, 52 Cal.4th at p. 417; see also Backus, supra, 23 Cal.3d at p. 392.) Importantly, the Packer court emphasized that due process concerns are heightened where, as here, they are accompanied by claims of prosecutorial impropriety. (Packer, supra, 201 Cal.App.4th at p. 168; see also infra Part II, Subpart B.)
Ultimately, the Packer court was not required to decide whether due process requires an unbiased grand jury, instead upholding the trial court’s determination that the defendant had failed to demonstrate Juror No. 2 was actually biased. (Packer, supra, 201 Cal.App.4th at p. 169.) It stressed that Juror No. 2’s participation in the Task Force was “clerical”: “she did not participate in [the] analysis and had no knowledge of the computer’s contents.” (Id. at pp. 169-170.) While upholding the Packer defendant’s conviction, the court left some parting advice for prosecutors: “Given the unsettled state of the law, a prudent prosecutor would seek the court’s intervention where bias is apparent or at least questionable.” (Packer, supra, 201 Cal.App.4th at p. 172.) Of course, no intervention was sought in this case.