1999 / 2000 San Benito County - Civil Grand Jury Report*

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The Grand Jury recommends that the Board of Supervisors direct the District Attorney to hire and train a sworn investigator to conduct criminal investigation and to develop expertise in crime scene and motor vehicle accident reconstruction. Response to Recommendation 3: Elected Department Heads, including the District Attorney, are granted broad latitude as to the manner in which they carry out their charge, limited only by applicable statutes and the County's budget process. It is within the discretion of the District Attorney to seek to fulfill the needs of his department either through a proposed allocation of a position within his budget or through a proposed contract for such services, subject to approval in either case by the Board of Supervisors. In this matter, the District Attorney submitted a proposed contract to the Board of Supervisors that was determined to be a legal contract, for which the District Attorney had sufficient budgeted resources, and the contract therefore was approved by the Board. Thank you for your consideration of this response, submitted pursuant to California Penal Code Section 933. Sincerely, Supervisor Bob Cruz, Chairman The District Attorney Responds to the Interim Report of The San Benito County Grand Jury Law and Justice Committee Filed February 16, 2000 as Follows: Summary: The Grand Jury lacks jurisdiction to investigate any and all allegations pertaining to pleadings filed in any case by the District Attorney. The Grand Jury in commenting about these items over which they have no jurisdiction and the timing of their report, raises a strong suspicion of a political motive and bias in issuing an interim report just days prior to an election in which the District Attorney is a candidate. The District Attorney is absolutely privileged to file declarations, and pleadings on matters believed to be related to the facts and legal issues in a case, which are lawfully filed in a court of law. The hiring of an independent expert is not only legal, but authorized and cost effective. The District Attorney did not "leak" the name or names of complainants. The allegations made against the District Attorney and Deputy District Attorney LaForge by the Grand Jury accusing them of unprofessional conduct are not privileged. The District Attorney in the pleadings never alleged a "political conspiracy" and the use of this term by the Grand Jury is unwarranted and inflammatory. The District Attorney's Office denies it lacks respect for differences of opinion. The Grand Jury has wasted time and taxpayer money in investigating matters beyond its jurisdiction. 1. The Grand Jury Lacks Jurisdiction To Investigate Any and All Allegations Concerning Pleadings Lawfully Filed in Pending Cases The Grand Jury has civil authority to investigate all "operations, accounts and records" of all county offices as part of its civil watchdog function pursuant to Penal Code Sections 914.1, 915 and 925. However, the Grand Jury has no authority to investigate matters upon which an elected official or their duly authorized deputy have discretion granted by the constitution or by law. The Grand Jury has no authority under the civil watchdog function to conduct investigations into professional conduct for the State Bar or any court in California. The Grand Jury is limited in its criminal function to issuing criminal indictments presented by the State of California and only through its lawful officers the Attorney General or the District Attorney. In years past, the Grand Jury has been advised of their legal limits. It is unknown if the Grand Jury has sought legal advice in the current term or from whom. The District Attorney is a constitutionally authorized elected local official charged with enforcing state law. The office, like that of judges. exercises its discretion in cases in which prosecutions are filed and undertaken and judgments are rendered. In the due exercise of their discretion, these offices are given immunity from liability. The filing of pleadings is solely within the discretion of the District Attorney. To provide otherwise would be to hamper the proper function and discretion of the prosecution and the courts. The Grand Jury in this case has gone beyond its lawful authority to "investigate" complaints related to ongoing litigation and court documents in which the District Attorney and the courts have already exercised their discretion. Further, if it is shown that the Grand Jury not only lacks the power to investigate such complaints under their lawful authority, they are not privileged in their comments. (Penal code section 930). It is the contention of the District Attorney that the Grand Jury has no authority to call for sanctions. The Grand Jury has no authority to investigate alleged unethical conduct on the part of lawyers. The Grand Jury is wholly without power to even consider these subjects. 2. The Grand Jury In Commenting About Items Over Which They Have No Jurisdiction And the Timing of The Report, Raises a Suspicion of A Political Motive And Bias In Issuing An Interim Report Just Prior to An Election In Which The District Attorney is a Candidate The Grand Jury seldom issues interim reports. By law, the Grand Jury report is to be filed on or before the impaneling of a succeeding Grand Jury. In San Benito County, that would mean that the report would be filed normally on or about June 30. In the past 20 years the Grand Jury has only issued a handful of mid-year reports and without exception they pertain to urgent and serious issues that mandate immediate action or correction. In the case of People v. Martinez, the underlying subject matter of this complaint, the motion to recuse was heard seven months ago. The prosecution was successful in denying the recusal. Subsequently, five months ago the Sixth District Court of Appeal affirmed the action of the San Benito County Superior Court. Further, just this month defendant Martinez died of natural causes while in custody, leaving the co-defendant Dominguez still pending charges in the case. What possible urgency did the Grand Jury have in issuing an interim report in February? The District Attorney is seeking election to a Superior Court Judgeship. The primary election is March 7, 2000. It is hardly a coincidence that the report was issued a scant 2 and ½ weeks prior to the election. The question must be asked: Is it possible that a motive exists to issue a report on a matter that is several months old, over which the Grand Jury lacks jurisdiction to even investigate, and in which the defendant is deceased, is to try to embarrass or discredit the office of the District Attorney just prior to an election? Furthermore, the case of the co-defendant is still pending. It is unknown what effect, if any this matter could have on the ability of both sides in that matter to obtain a fair, local trial without the cost of a change of venue due to excessive publicity. 3. The District Attorney is Absolutely Privileged to Comment on Matters Believed to Be related to the Facts and Legal Issues in A Case, in Pleadings and Arguments Lawfully Filed in a Court of Law. The matters and issues contained within the responsive pleadings filed in the Martinez case were done in the regular course of litigation. As an advocate for the People of the State of California, the District Attorney has a duty to be a zealous advocate. In this case, a mother of 5 was brutally raped and murdered leaving her children orphaned. The District Attorney has a duty to vigorously pursue those charges. Furthermore, the underlying issue of whom the District Attorney chooses to hire, and to subpoena as an expert witness 265 or for assistance in any case is beyond the power of the Grand Jury to determine. Having the sole discretion as to whether or not to file charges, what charges to file, what evidence to present or what witnesses to call, what pleadings to file and what arguments are made are matters solely within the discretion of the District Attorney subject only to the rulings of the court. The defense in this action sought to use matters not related to the case in an attempt to discredit a principal witness. The prosecution had a duty to rebut these allegations with evidence to assist the court in determining whether or not any bias existed. Obviously, the court felt that no bias or prejudice existed to the defendant. The Sixth District Court of Appeal upheld this finding of law and of fact. Yet, the Grand Jury Law and Justice Committee now seeks to substitute its findings for the lawful findings of both the trial court and the Court of Appeal. The Grand Jury clearly has no power to do SO. 4. The Hiring of an Independent Expert is Not Only Legal, But Authorized and Cost Effective The Grand Jury clearly does not approve of the hiring of the prosecution's independent expert. It is the District Attorney's contention that this finding by the Grand Jury is based on political arguments raised by a few citizens concerning costs of the expert or the fact that the expert was a retired employee "doing the same job while on disability". It should noted that the expert has only been retained a total of 9 times since 1992. This amounts to an average of about one case per year on average. The expert's compensation has been limited by the Board of Supervisors. The expert works under the direction of the District Attorney pursuant to a contract approved by the Board of Supervisors and County Counsel. In every case, the expert has to qualify before testifying before a court. The expert is independent, highly qualified, and respected and offers his services at a very affordable price. He has qualified as an expert in California in numerous counties as a crime scene and accident reconstruction expert. To obtain equivalent services, most of the time would require the use of experts who would charge 4 to 5 times his hourly rate. Further, it would not be cost effective for the county to hire an expert at the cost of probably over $80,000 per year, for services that have continued to remain below $20,000 per year. This is true, especially since the expert is retained only in a few cases. The Grand Jury has never cited any law, rule or regulation that would prohibit the District Attorney from hiring this expert, nor can they. The expert is not legally disqualified from providing services to the county because of his retirement, because of any disability, or because he works independently. Just because there has been political objection to the hiring does not give rise to a finding that the County should not retain the services of the expert. The San Benito County Board of Supervisors, County Counsel, Superior Court as well as the Sixth District Court of Appeals apparently agree. 5. The District Attorney Did Not "Leak" the Name or Names of Complainants The Grand Jury accused the District Attorney of Leaking the name or names of complainants. Before the District Attorney could be accused of leaking anything, the District Attorney would have had to have been told the name(s) of complainants. The District Attorney's office was never specifically told of the names. In this case, it is no secret that was a long-standing political animosity between the certain individuals and the District Attorney's office. Those identified in the District Attorney's pleadings made no secret of their complaints. The District Attorney was pointing out to the trial court the efforts of those individuals to attempt to potentially influence both the Board of Supervisors as well as the court in their decisions. The Grand Jury never informed the District Attorney of any of the identities of complainants, therefore to state that the District Attorney engaged in inappropriate conduct is without foundation or supporting facts. Further, the Grand Jury in accusing the District Attorney of this type of conduct in the absence of an indictment is not privileged. (see Penal Code section 930) 6. The Allegations Made Against District Attorney and Deputy District Attorney LaForge by the Grand Jury Accusing Them of Unprofessional Conduct Are Not Privileged In accusing the District Attorney and Deputy District Attorney LaForge of conduct that is likely "sanctionable", that he has misled the court and of other inappropriate conduct, the grand jury has exceeded its lawful authority. The only bodies that can lawfully make these

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The Grand Jury recommends that the Board of Supervisors direct the District Attorney to hire and train a sworn investigator to conduct criminal investigation and to develop expertise in crime scene and motor vehicle accident reconstruction. Response to Recommendation 3: Elected Department Heads, including the District Attorney, are granted broad latitude as to the manner in which they carry out their charge, limited only by applicable statutes and the County's budget process. It is within the discretion of the District Attorney to seek to fulfill the needs of his department either through a proposed allocation of a position within his budget or through a proposed contract for such services, subject to approval in either case by the Board of Supervisors. In this matter, the District Attorney submitted a proposed contract to the Board of Supervisors that was determined to be a legal contract, for which the District Attorney had sufficient budgeted resources, and the contract therefore was approved by the Board. Thank you for your consideration of this response, submitted pursuant to California Penal Code Section 933. Sincerely, Supervisor Bob Cruz, Chairman The District Attorney Responds to the Interim Report of The San Benito County Grand Jury Law and Justice Committee Filed February 16, 2000 as Follows: Summary: The Grand Jury lacks jurisdiction to investigate any and all allegations pertaining to pleadings filed in any case by the District Attorney. The Grand Jury in commenting about these items over which they have no jurisdiction and the timing of their report, raises a strong suspicion of a political motive and bias in issuing an interim report just days prior to an election in which the District Attorney is a candidate. The District Attorney is absolutely privileged to file declarations, and pleadings on matters believed to be related to the facts and legal issues in a case, which are lawfully filed in a court of law. The hiring of an independent expert is not only legal, but authorized and cost effective. The District Attorney did not "leak" the name or names of complainants. The allegations made against the District Attorney and Deputy District Attorney LaForge by the Grand Jury accusing them of unprofessional conduct are not privileged. The District Attorney in the pleadings never alleged a "political conspiracy" and the use of this term by the Grand Jury is unwarranted and inflammatory. The District Attorney's Office denies it lacks respect for differences of opinion. The Grand Jury has wasted time and taxpayer money in investigating matters beyond its jurisdiction. 1. The Grand Jury Lacks Jurisdiction To Investigate Any and All Allegations Concerning Pleadings Lawfully Filed in Pending Cases The Grand Jury has civil authority to investigate all "operations, accounts and records" of all county offices as part of its civil watchdog function pursuant to Penal Code Sections 914.1, 915 and 925. However, the Grand Jury has no authority to investigate matters upon which an elected official or their duly authorized deputy have discretion granted by the constitution or by law. The Grand Jury has no authority under the civil watchdog function to conduct investigations into professional conduct for the State Bar or any court in California. The Grand Jury is limited in its criminal function to issuing criminal indictments presented by the State of California and only through its lawful officers the Attorney General or the District Attorney. In years past, the Grand Jury has been advised of their legal limits. It is unknown if the Grand Jury has sought legal advice in the current term or from whom. The District Attorney is a constitutionally authorized elected local official charged with enforcing state law. The office, like that of judges. exercises its discretion in cases in which prosecutions are filed and undertaken and judgments are rendered. In the due exercise of their discretion, these offices are given immunity from liability. The filing of pleadings is solely within the discretion of the District Attorney. To provide otherwise would be to hamper the proper function and discretion of the prosecution and the courts. The Grand Jury in this case has gone beyond its lawful authority to "investigate" complaints related to ongoing litigation and court documents in which the District Attorney and the courts have already exercised their discretion. Further, if it is shown that the Grand Jury not only lacks the power to investigate such complaints under their lawful authority, they are not privileged in their comments. (Penal code section 930). It is the contention of the District Attorney that the Grand Jury has no authority to call for sanctions. The Grand Jury has no authority to investigate alleged unethical conduct on the part of lawyers. The Grand Jury is wholly without power to even consider these subjects. 2. The Grand Jury In Commenting About Items Over Which They Have No Jurisdiction And the Timing of The Report, Raises a Suspicion of A Political Motive And Bias In Issuing An Interim Report Just Prior to An Election In Which The District Attorney is a Candidate The Grand Jury seldom issues interim reports. By law, the Grand Jury report is to be filed on or before the impaneling of a succeeding Grand Jury. In San Benito County, that would mean that the report would be filed normally on or about June 30. In the past 20 years the Grand Jury has only issued a handful of mid-year reports and without exception they pertain to urgent and serious issues that mandate immediate action or correction. In the case of People v. Martinez, the underlying subject matter of this complaint, the motion to recuse was heard seven months ago. The prosecution was successful in denying the recusal. Subsequently, five months ago the Sixth District Court of Appeal affirmed the action of the San Benito County Superior Court. Further, just this month defendant Martinez died of natural causes while in custody, leaving the co-defendant Dominguez still pending charges in the case. What possible urgency did the Grand Jury have in issuing an interim report in February? The District Attorney is seeking election to a Superior Court Judgeship. The primary election is March 7, 2000. It is hardly a coincidence that the report was issued a scant 2 and ½ weeks prior to the election. The question must be asked: Is it possible that a motive exists to issue a report on a matter that is several months old, over which the Grand Jury lacks jurisdiction to even investigate, and in which the defendant is deceased, is to try to embarrass or discredit the office of the District Attorney just prior to an election? Furthermore, the case of the co-defendant is still pending. It is unknown what effect, if any this matter could have on the ability of both sides in that matter to obtain a fair, local trial without the cost of a change of venue due to excessive publicity. 3. The District Attorney is Absolutely Privileged to Comment on Matters Believed to Be related to the Facts and Legal Issues in A Case, in Pleadings and Arguments Lawfully Filed in a Court of Law. The matters and issues contained within the responsive pleadings filed in the Martinez case were done in the regular course of litigation. As an advocate for the People of the State of California, the District Attorney has a duty to be a zealous advocate. In this case, a mother of 5 was brutally raped and murdered leaving her children orphaned. The District Attorney has a duty to vigorously pursue those charges. Furthermore, the underlying issue of whom the District Attorney chooses to hire, and to subpoena as an expert witness 265 or for assistance in any case is beyond the power of the Grand Jury to determine. Having the sole discretion as to whether or not to file charges, what charges to file, what evidence to present or what witnesses to call, what pleadings to file and what arguments are made are matters solely within the discretion of the District Attorney subject only to the rulings of the court. The defense in this action sought to use matters not related to the case in an attempt to discredit a principal witness. The prosecution had a duty to rebut these allegations with evidence to assist the court in determining whether or not any bias existed. Obviously, the court felt that no bias or prejudice existed to the defendant. The Sixth District Court of Appeal upheld this finding of law and of fact. Yet, the Grand Jury Law and Justice Committee now seeks to substitute its findings for the lawful findings of both the trial court and the Court of Appeal. The Grand Jury clearly has no power to do SO. 4. The Hiring of an Independent Expert is Not Only Legal, But Authorized and Cost Effective The Grand Jury clearly does not approve of the hiring of the prosecution's independent expert. It is the District Attorney's contention that this finding by the Grand Jury is based on political arguments raised by a few citizens concerning costs of the expert or the fact that the expert was a retired employee "doing the same job while on disability". It should noted that the expert has only been retained a total of 9 times since 1992. This amounts to an average of about one case per year on average. The expert's compensation has been limited by the Board of Supervisors. The expert works under the direction of the District Attorney pursuant to a contract approved by the Board of Supervisors and County Counsel. In every case, the expert has to qualify before testifying before a court. The expert is independent, highly qualified, and respected and offers his services at a very affordable price. He has qualified as an expert in California in numerous counties as a crime scene and accident reconstruction expert. To obtain equivalent services, most of the time would require the use of experts who would charge 4 to 5 times his hourly rate. Further, it would not be cost effective for the county to hire an expert at the cost of probably over $80,000 per year, for services that have continued to remain below $20,000 per year. This is true, especially since the expert is retained only in a few cases. The Grand Jury has never cited any law, rule or regulation that would prohibit the District Attorney from hiring this expert, nor can they. The expert is not legally disqualified from providing services to the county because of his retirement, because of any disability, or because he works independently. Just because there has been political objection to the hiring does not give rise to a finding that the County should not retain the services of the expert. The San Benito County Board of Supervisors, County Counsel, Superior Court as well as the Sixth District Court of Appeals apparently agree. 5. The District Attorney Did Not "Leak" the Name or Names of Complainants The Grand Jury accused the District Attorney of Leaking the name or names of complainants. Before the District Attorney could be accused of leaking anything, the District Attorney would have had to have been told the name(s) of complainants. The District Attorney's office was never specifically told of the names. In this case, it is no secret that was a long-standing political animosity between the certain individuals and the District Attorney's office. Those identified in the District Attorney's pleadings made no secret of their complaints. The District Attorney was pointing out to the trial court the efforts of those individuals to attempt to potentially influence both the Board of Supervisors as well as the court in their decisions. The Grand Jury never informed the District Attorney of any of the identities of complainants, therefore to state that the District Attorney engaged in inappropriate conduct is without foundation or supporting facts. Further, the Grand Jury in accusing the District Attorney of this type of conduct in the absence of an indictment is not privileged. (see Penal Code section 930) 6. The Allegations Made Against District Attorney and Deputy District Attorney LaForge by the Grand Jury Accusing Them of Unprofessional Conduct Are Not Privileged In accusing the District Attorney and Deputy District Attorney LaForge of conduct that is likely "sanctionable", that he has misled the court and of other inappropriate conduct, the grand jury has exceeded its lawful authority. The only bodies that can lawfully make these

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The Grand Jury recommends that the Board of Supervisors and the Superior Court appropriately sanction the Assistant District Attorney for his actions and for misleading the Court in his sworn declaration. Response to Recommendation 2: No appropriate sanction is available to the Board of Supervisors in this matter. The County's Personnel Rules clearly limit the authority of the Board of Supervisors to discipline employees, reserving to the Board only the right to discipline those employees directly appointed by the Board. In this case, only the Department Head has the authority to impose a disciplinary action, after consultation with the Personnel Officer.