El Dorado County DA Vern Pierson Accused of Grand Jury Abuse
Editor's Note: We have just received a copy of the court filing and we are providing these sections without alteration. We will continue to report on this issue after we have processed the complete document.
Convening a criminal grand jury to consider an indictment against an accused person, while permitted under California law, is far less common than the process of complaint, preliminary hearing, information and trial. Without debating the merits and demerits of the two different approaches, the fact is that proceeding by grand jury indictment deprives the accused of the basic procedural protections included under an information proceeding, including the right to be represented by counsel, the right to an adversary proceeding including the cross-examination of witnesses and objection to improper questioning, the right to present exculpatory evidence and witnesses favorable to the defense, and the participation of an impartial magistrate to ensure that evidence presented is admissible over objection.
It is important to emphasize that the role of the grand jury is, first and foremost, protective of the rights of the accused. The Supreme Court majority opinion in Johnson v. Superior Court (1975) l5 Cal.3d 248, 253 reminds us of the grand jury’s role as a “protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor."' (italics added, quoting United States v. Dionisio (1973) 410 U.S. 1, I7 [35 L. Ed. 2d 67, 93 S. Ct. 764].)
Accused persons in the course of a grand jury criminal investigation are provided by law with an alternate set of protections which, when faithfully observed, serve to protect the rights of the accused.‘ On the other hand, the grand jury process is filled with opportunities for manipulation ranging from mere mischief to outright misconduct on the part of impassioned or overzealous prosecutors. The sole remedy available to the accused is to proceed by motion to set aside the indictment. While we do not intend here to accuse the prosecution of misconduct in the grand jury process, we believe that Ray Nutting’s constitutional rights to due process and equal protection have been violated in this matter.
Footnotes: In [G]rand jury secrecy serves to protect the "accused's reputation." (Hawkins v. Superior Court (1978) 22 Cal.3d 584, p. 618 (dis. opn. of Richardson, J.).) Other protections Justice Richardson noted are: Every indicted defendant is entitled to a complete transcript of proceedings. All witnesses, regardless of whether they are targets, are protected against self- incrimination. Grand jurors are authorized "to order additional evidence" if "they have reason to believe it will explain away the charge ." (Ibid. (dis. opn. of Richardson, J .).) And prosecutors must inform the grand jury of any evidence "'reasonably tending to negate guilt."' (Id. at p. 619 (dis. opn. of Richardson, J .), quoting Johnson v. Superior Court (1975) I 5 Cal.3d 248, 255 [124 Cal. Rptr. 32, 539 P.2d 792] (Johnson).) (McGill v. Superior Court (201 l) 195 Cal. App. 4th l454)
A signifcant portion of California’s high court, including two justices in Johnson and five in Hawkins, have been explicit in their dismay over, as the Hawkins majority put it, ‘pervasive prosecutorial infuence’ over grand juries. (Id. at S87). What tension there has been in our high court's ' jurisprudence has not been over what grand juries ought to be, but what, in practice, they are. In Hawkins, a majority of the Supreme Court took the view that, by the late 1970's, grand jury independence had become a ‘fiction.’ For example, the Hawkins majority opinion is often cited for its colorful line that
‘current indictment procedures create what can only be characterized as a prosecutor's Eden: he decides what evidence will be heard, how it is to be presented, and then advises the grand jury on its admissibility and legal significance.’”
(Id. at p. 592) (McGill v. Superior Court, (201 I) I95 cal.App.4"‘ 1454, 1469-1470, fn. omitted.)]
… Roger Hedgecock, a member of the San Diego County Board of Supervisors, and a candidate for Mayor of San Diego, was accused of failing to disclose economic interests and campaign contributions as required under the Political Reform Act of 1974 (Act). He was charged with conspiracy to violate provisions of the Act, and l2 counts of perjury related to errors or omissions in the disclosure statements.
The Supreme Court granted review to address two issues, one of which is signifcant here; “whether in a perjury prosecution based on errors or omissions in disclosure statements required by the Act, is the materiality of the errors or omissions an element of the offense to be determined by the jury?” (People v. Hedgecock, (1990) 5] Cal.3d 395, 396). The Court concluded that it was.
“We reject the Attorney General's contention that because the Act requires candidates to disclose any contribution over $100 and requires offce holders to report any source of income over $250, the failure to do so is inherently material. This approach would be of little assistance in determining whether a partial or inaccurate disclosure...is material. Such a defnition would be so broad as to render the term virtually superfuous. Further, the Act provides less drastic sanctions for relatively minor violations. [fn. omitted] We are persuaded that the legislation was intended to permit prosecution for perjury, a felony punishable by imprisonment for up to four years, only in cases involving more serious violations of the Act...” (People v. Hedgecock, ibid, 405)
“We therefore conclude that, in a perjury prosecution based on a failure to comply with the disclosure provisions of the Act, an omission or misstatement of fact is material if there is a substantial likelihood that a reasonable person would consider it important in evaluating (l) whether a candidate should be elected to, or retained in, public of?ce, or (2) whether a public offcial can perform the duties of of?ce free from any bias caused by concern for the financial interests of the offcial or the offcial's supporters.” (People v. Hedgecock, ibid, 406, 407)
Accordingly, the grand jury should have been instructed as to the materiality standard articulated by the Court in Hedgecock, as outlined above. The prosecution’s failure to properly instruct the grand jury requires that the indictment as to the alleged violation of Penal Code section 1 18 (Perjury) set forth in Count ll, be dismissed.
The Manner in Which the Grand Jury Proceedings were Conducted Ran Afoul of Ray Nutting’s Constitutional Right to Due Process
1. Failure to Present Exculpatory Evidence to the Grand Jury,
The district attorney’s ofﬁce apparently began its investigation of conﬂict of interest allegations involving Ray Nutting in April, 2012, more than a year before the grand jury would be asked to consider the indictment. The pace of the investigation accelerated in early 2013. During that time, the District Attorney’s Ofﬁce gathered thousands of pages of documents from various entities and agencies, executed search warrants, conducted forensic audits of Mr. Nutting’s bank account records, analyzed the Cal Fire Prop 40 grant award records and interviewed Mr. Nutting on ﬁve separate occasions. In addition, they conducted a number of interviews with other witnesses.”
The interviews are especially informative. Part interview and part proselytizing, the District Attorney’s investigators devote much of their time trying to convert the non-believers to see the circumstances from their perspective - their version of the case. As we show below, most of the witnesses are unconvinced. Rather than abandon a theory that clearly doesn’t hold water, the presentation of evidence to the grand jury is orchestrated to avoid discussion of these sensitive topics. Thus, it deprives the grand jury of the information needed to discharge their duties and is a fundamental violation of Ray Nutting’s constitutional right to due process.
Penal Code section 939.7 provides:
“The grand jury is not required to hear evidence for the defendant, but it shall weigh all the evidence submitted to it, and when it has reason to believe that other evidence within its reach will explain away the charge, it shall order the evidence to be produced, and for that purpose may require the district attomey to issue process for the witnesses.”
Of course, the grand jury can only discharge its duty under section 939.7 if they are aware that the evidence may exist. “. . .[l]f the district attorney does not bring exculpatory evidence to the attention of the grand jury, the jury is unlikely to Ieam of it. We hold, therefore, that when a district attomey an indictment is aware of evidence reasonably tending to negate guilt, he is obligated under 939.7 to inform the grand jury of its nature and existence, so that the grandjury may exercise its power under the statute to order the evidence produced.” (Johnson v. Superior Court (1975) l5 Cal.3d 248, 255) (italics added)
In 1997, section 939.71 was added to the penal code:
“939.7 l. (a) lf the prosecutor is aware of exculpatory evidence, the prosecutor shall inform the grand jury of its nature and existence. Once the prosecutor has informed the grand jury of exculpatory evidence pursuant to this section, the prosecutor shall inform the grand jury of its duties under Section 939.7. If a failure to comply with the provisions of this section results in substantial prejudice, it shall be grounds for dismissal of the portion of the indictment related to that evidence.
(b) lt is the intent of the Legislature by enacting this section to codify the holding in Johnson v. Superior Court, 15 Cal. 3d 248, and to afﬁrm the duties of the grand jury pursuant to Section 939.7.”
The defense submitted a package of exculpatory evidence with a request that the evidence be presented to the grand jury. The prosecutor advises the grand jury about that evidence:
Mr. Clinchard: “So at this point in time, l am going to tell you just brieﬂy about an exhibit, that is Exhibit Number 7. And this is a packet given to our ofﬁce as part of our request to them of what’s called a Johnson letter, give us exculpatory information.
And so this packet you see here is Exhibit 7. lt is 141 pages long. And generally — and you can look at as much or as little as you want. Generally the ﬁrst few pages are from a website. And then there’s 14 pages that are dated May 6, 2013, but not signed by anyone. lt’s uncertain who actually wrote it. It references multiple different exhibits within that l4-page document.
ln looking through those various attached 24 different exhibits — and you feel free to review them as much or as little as you want - I believe approximately 80 to 90 percent of them have already been admitted here in one form or fashion. But that is a document that you have available to you in the grand jury room. And that’s Exhibit 7 given to our office by Ray Nutting’s attomey, David Weiner.” (R.T. 333:1 l 334:1)
We will show in the following pages that signiﬁcant exculpatory evidence was available — both in information provided by the defense but trivialized by the prosecution, and evidence which the prosecution had gathered through its own investigation. At a minimum, the prosecution failed to discharge its affirmative duty to bring the evidence to the grand jury’s attention. “The question is not whether the prosecutor has substantial evidence of guilt, or that there is evidence that might reasonably tend to negate a defense. The question is whether the prosecutor has information that reasonably tends to negate guilt.
“Now, we are not saying that the grand jury necessarily had to believe such a scenario.
This is not a substantial evidence case—the grand jury still might have indicted McGill for perjury.
“But they were entitled to have the chance to consider it.” (McGill v. Superior Court (People) (2011) I95 Cal.App.4th 1454, 1507.)
The Grand Jury was entitled to have considered the following exculpatory evidence within the possession and control of the District Attorney.
a. “Evidence Reasonably Tending to Negate Guilt " Known or Available to the Prosecution but not Presented to the Grand Jury,
The testimony and exhibits presented to the grand jury by the district attorney represent only a small portion of the evidence available, and overwhelmingly, only the evidence that supports his version of events. Following are examples of the information known to the prosecutors, but not presented to the grand jury:
- Cal Fire, not the SCRMC, controls the Prop 40 Grant Program.
- Cal Fire retains all the substantive decision making authority consistent with the CFIP program criteria.
- SCRMC is responsible for contract administration and disbursement of funds to landowners, subject to approval of the project or inspection of work by Cal Fire.
- The SCRMC Board takes formal action to approve the grants between Cal Fire and SCRMC.
- The SCRMC Board does not take any formal action to approve individual Prop 40 landowner grants, nor encumbering funds to individual private landowners.
- RCDs have no direct role in the Prop 40 Grant Program.
- The RCD Boards do not take any action to approve landowner grants under the program.
- The RCD Boards do not encumber funds to landowners, or approve payments under authorized grants.
- The RCDs had no involvement in the award of grants to Ray Nutting.
- Ray Nutting did not receive any preferential treatment. Ray Nutting did not receive special beneﬁt or preferential treatment as a result of his vote to approve RCD funding; allegations to the contrary lack proper foundation and create a false inference.
- Assertion that he received 20% of the Prop 40 Grant Funds is inaccurate, irrelevant and prejudicial.
- Cal Fire approved projects on a “ﬁrst-come, ﬁrst-served” basis, making the participant grant rating/ranking process unnecessary.
- The review and approval of invoices and the payment to Mr. Nutting was consistent with the practice of Cal Fire for similar projects.
- The RCDs have received an annual funding allocation from the El Dorado County Board of Supervisors on the same basis for at least the past 25 years.
- The funding allocation is based on an agreement negotiated by a prior board member under which the RCDs relinquished their legal authority to levy property taxes within the districts. (GJ Exhibits 4-5:] 105, 4-6:1 128, 4-7:1 l5 l , 4-8:1 164)
- Tahoe RCD did not relinquish those rights, and continues to receive a share of property taxes after the passage of Proposition l3. (Ibid.)
- Ray Nutting did not receive any special consideration or preferential treatment because of his vote for the funding allocations. (EE-B. C — MarkEgbert4-4-l3: 705]-52; 7078- 7079. Also, EE-B. C — AlHubbard_24-l6-l3:6938)
- Ray Nutting’s 2007 Prop 40 grant application was submitted to Cal Fire, reviewed and ready to be funded before Cal Fire engaged SCRMC in the process.
- Refer to note (GJ Exhibit 2-6b :743) “OK to fund J. Calvert 4/ l6/2006” note on CFIP Agreement Checklist (Cal Fire form)
- The grant was delayed by the Attomey General’s advice that Cal Fire could not contract directly with landowners under Prop 40. (See Cal Fire “intemal advice”; GJ Exhibit 2-2: 555-59)
- During the discussions between SCRMC and Cal Fire about grant administration, Cal Fire indicated that a group of applications were “reviewed and prioritized” and ready to be funded. (EE-A. SCRMC Binder:4l32)
- Ray Nutting’s grant was funded in the ﬁrst round of grants after the SCRMC framework was in place. (EE-A. SCRMC Binder: 4122)
- Ray Nutting was a private citizen when the 2007 Prop 40 grant application was transferred to SCRMC and executed (2007). (Oath of Ofﬁce; January 5, 2009. GJ Exhibit 2-3)
- At the conclusion of the ﬁrst series of grants (2007 through 2010), SCRMC retumed approximately $400,000 of unspent grant money to Cal Fire. (EE-A. SCRMC Binder: 4077)
End of part one of this story. Watch for more later this week