The discussion continues over whether LA’s City Attorney Carmen Trutanich should be given his very own Grand Jury, which he contends that he needs. If you will remember, if he gets the thing, it is believed he will be the first City Attorney—or City Attorney-like office (the position is called something else in say, New York City or Chicago)—to have a Grand Jury at his/her disposal.
District attorneys have access to grand juries. So do attorneys general and federal prosecutors. But city attorneys? Uh, no. They just don’t.
(In fact, just for the hell of it, I called representatives of the like offices in New York and Chicago and explained what our city attorney wanted. Their reactions to the idea ranged from quizzical to a more polite version of “WTF??”)
Yet, Mr. Trutanich was so convinced he had to have one of the things that he by-passed the option of having the conversation with the city council about the matter, and then taking his request to LA voters in the form of an amendment to the city charter.
Instead he managed to get state senator Gil Cedillo to introduce a bill into the state legislature that would accomplish the deed without the inconvenience of LA city government and/or voters having to be consulted at all. To date, the state senate has passed the bill—SB 1168—and it is headed to the Assembly.
When I say “by-passed the city council,” I mean they knew zip about the bill until it was already headed for passage.
Councilwoman Jan Perry said that the first she heard about the thing was when LA Times reporter Patrick McGreevy called her to ask for a comment on the matter.
Since Los Angeles is a charter city, this kind of end run around city government is extremely unusual. Depending upon whom you ask, it is also possibly not legal.
However, Mr. Trutanich is, of course, himself an attorney, and clearly he thinks its a fine idea.
SO…. WHAT IS A GRAND JURY ANYWAY?
In case you have forgotten (or were never really sure in the first place), the purpose of a Grand Jury-–which has been an American institution since colonial days—is for a group of 16-23 ordinary citizens to review the adequacy of evidence presented by a prosecutor and then decide whether to indict the suspect or suspects. In most state courts—California included—that function is more commonly performed by a preliminary hearing in open criminal court. However, in certain cases, a Grand Jury is used instead. It is such an important tool it is enshrined in the US Constitution.
However, by its nature, a Grand Jury is particularly vulnerable to abuse because it is not subject to the same rules and balancing oversight that apply to criminal courts.
For instance, neither witnesses nor suspects who are called before a grand jury are allowed to have an attorney present when they testify. Unlike in criminal court, hearsay evidence is allowed. The accused has no right to present evidence or cross examine witnesses. Grand Juries meet in secret, and a formal record of the proceedings is not usually provided to the suspect even after an indictment.
TRUTANICH’S PROPOSED GRAND JURY IS DIFFERENT
The Grand Jury that Mr. Trutanich has asked for—and will get if SB 1168 passes—cannot indict. It can only investigate, which sort of stands the traditional purpose of the GJ on its head.
Still, like regular grand juries, it can issue subpoenas and question witnesses outside the normal rules of criminal proceedings. In other words, if used badly, it means that a prosecutor can go on evidentiary fishing expeditions that a regular criminal judge would never allow.
If passed, SB 1168, will only last as long as Mr. Trutanich is in office. It sunsets on January 1, 2014, six months after his term as city attorney has ended.
SO WHY SHOULD YOU CARE?
Well, you should always care when a public official wants a lot more power than he or she is presently accorded by law.
Up until now, no one has seen the need for the LA city attorney to have Grand Jury power since the city attorney’s main job is to be the legal representative and adviser to the city and its government representatives.
However, Trutanich’s point is that LA’s City attorney also prosecutes misdemeanors. So he and representatives of his office say that he needs the Grand Jury in order to better investigate such misdemeanor issues as health insurance fraud, mortgage fraud, wage theft, product safety, workplace safety and patient dumping by hospitals—all of which can assuredly be complex.
Most specifically, Mr. Trutanich wants the grand jury for its subpoena power.
Since the announcement of the senate bill’s existence, Mr. Trutanich’s subpoena power desires have been questioned by a wide variety of people.
One of them, Raphael Sonenshein, wrote a very critical editorial in the LA Times last Friday. This was notable since Sonenshein is a scholarly sort who was the head of the Charter Reform Commission, one of the two commissions that wrote the revisions to the city’s charter that voters passed in 1999 (the first such revisions since 1925). In other words, few know LA’s governmental structure better than Raphael Sonenshein.
Sonenshein was basically aghast at the idea, and concluded his Op Ed with the following:
Any city attorney who tries to go around voters and lobby the Legislature for additional, novel and unnecessary power is exactly the wrong person to be entrusted with it. Trutanich is a textbook case of a city attorney whose actions have raised questions about how wisely he has used the power he already has.
Since his election in 2009, Trutanich has threatened city officials and private citizens with jail when they get in his way, and has abused his bail authority. One can only imagine what Trutanich would do with a secret grand jury.
The Daily News editorial board was also made queasy by Trutanich’s power grab:
“…there’s something that just doesn’t feel right about Trutanich’s latest effort….” they wrote.
TELLING RADIO MOMENTS
The Founding Dean of the UC Irvine Law School, Erwin Chemerinsky, has also questioned the legality of Trutanich’s move. Last week, Chemerinksy, who was the chair of the other committee that revised the city charter in 1999, was on Which Way LA? along with Trutanich and City Councilmember Jan Perry.
It is worth your while to listen.
On the show, both Chemerinsky and Perry were calm as they pointed out the probable illegality of what Trutanich is doing.
Trutanich, however, testily accused the city council of trying to violate his first amendment rights with their objections to his end run.
He also said that, when he acts as a prosecutor, he’s the prosecutor for the state of California, not for Los Angeles, so he is in fact empowered to go to the state for such powers.
In response, Chemerinsky basically said you’ve got to be kidding, dude, except that he said it very nicely and patiently and in much more legal detail. (The section begins at about minute 19-ish and goes to minute 21:40.)
And then there was a rather surprising exchange at minute 13:20, at which point Mr. Trutanich actually attempted to bitch-slap Warren Olney.
Taking a swing at Warren Olney under any circumstances is a move guaranteed to make anyone look bully-ish and stupid.
In Trutanich’s case, it was not a wise PR choice for a man who wants us to let him grab a bigger badder weapon than he already possesses—without discernible legal checks to hold him accountable.