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California’s first-in-the-nation law requiring prosecutors, rather than secret grand juries, to decide whether a police officer who kills someone should be charged with a crime was declared unconstitutional Tuesday by a state appeals court.
The law, supported by defense lawyers and civil rights groups and opposed by prosecutors, took effect in 2016. It followed decisions by closed-door grand juries not to indict officers in the deaths of two unarmed black men, Michael Brown of Ferguson, Mo., and Eric Garner of Staten Island, N.Y., prompting demands that such decisions be made publicly by elected district attorneys.
But the Third District Court of Appeal in Sacramento said the law interferes with a county grand jury’s authority, established by the California Constitution in 1879, to issue an indictment after receiving evidence of a felony.
“The Legislature does not have the power to enact a statute that limits the constitutional power of a criminal grand jury to indict any adult accused of a criminal offense,” Justice M. Kathleen Butz said in the 3-0 ruling. Otherwise, she said, lawmakers could go further and eliminate a grand jury’s role in all criminal cases.
The ruling preserves the long-standing system in California of allowing prosecutors to submit criminal cases to a grand jury for indictment or file charges on their own. The U.S. Constitution, by contrast, requires a grand jury indictment for any federal felony charge unless the defendant waives that right.
Butz said supporters of the legislation had a point: The criminal grand jury system “lacks transparency,”in the words of the bill’s author, Sen. Holly Mitchell, D-Los Angeles, who said openness and accountability “are key to establishing and keeping” public trust in the system.
But Butz said legislators could enact laws to make criminal grand juries less secretive. She said they could also adopt a state constitutional amendment and submit it to the voters, although that would appear unlikely, as such amendments require two-thirds majorities in both houses and Mitchell’s bill narrowly won passage in both the Assembly and state Senate.
The court case came from South Lake Tahoe, where a police officer responding to reports of suspected domestic violence at a motel in June 2015 fatally shot a man who was climbing out of a bathroom window, and who proved to be unarmed.
To challenge the state law, the El Dorado County district attorney, Vern Pierson, held onto the case until January 2016, then convened a grand jury and issued subpoenas to officers and others involved in the incident. Before the jury could convene to consider possible charges, a Superior Court judge ruled the subpoenas invalid and dismissed the panel, prompting an appeal that led to Tuesday’s ruling.

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