Sonoma County Grand Jury may not review Andy Lopez case

Every year since 2001, the Sonoma County grand jury has reviewed what police call “critical incidents” - officer-involved shootings and the deaths of suspects or criminal defendants in custody.

Until this year.

The 2013-14 grand jury, whose term ended June 30, declined to examine such cases.

That includes the fatal October shooting of teenager Andy Lopez by Sonoma County Sheriff’s Deputy Erick Gelhaus, among other deaths involving law enforcement in the past year. Citing a lack of expertise, financial support and public misconceptions about their role, Sonoma County grand jurors decided to diverge from the longstanding custom.

At a press conference Monday announcing her decision that criminal charges were unwarranted against Gelhaus in Lopez’s shooting, District Attorney Jill Ravitch noted that her report will next head to the grand jury for review.

That left the impression that the panel would provide another layer of scrutiny over the incident itself and Ravitch’s decision not to pursue criminal charges against Gelhaus, who fatally shot Lopez, 13, after the deputy apparently mistook the airsoft BB gun he was carrying for an assault rifle.

But even grand jury members said that’s a fundamental misunderstanding of their role.

“It’s really one of procedural or administrative oversight,” said Martin Jones, the upcoming term’s Sonoma County grand jury foreman. “It’s not one where we participate in digging it (the D.A.’s report) apart.”

Jones said the newly formed panel could decide to review Ravitch’s report - or not. He stressed that the group isn’t an enforcement body with the force of the law behind it. “They’re either not qualified or have the feeling that it’s not something they want to get into,” he said of officer-involved death investigations.

The 2013-14 grand jury, in its report published June 25, said, “With scant resources, confidential investigations and deliberations, lack of time and its practice of responding to citizen complaints, this grand jury has chosen not to follow the practice of prior grand juries in reviewing critical incidents.”

Still, that’s the county protocol, as agreed to by the Sonoma County Law Enforcement Chiefs’ Association and member police agencies.

This year’s annual grand jury report, published last month, issued an individual report on “critical incidents” explaining the panel’s rationale for bowing out of the traditional review.

Essentially, the panel concluded that its members are not prepared to offer a thorough critique of complicated incidents such as officer-involved shooting deaths and that the public shouldn’t be led to believe they are.

“A grand jury review of the D.A.’s summary report may lead the public to believe this body performs in-depth investigations of all officer-involved fatalities,” it states. “By issuing this report, the 2013-2014 grand jury wishes to correct this possible misconception.”

In Sonoma County, civil grand juries don’t issue indictments, which is the role of a criminal grand jury typically impaneled for a singular purpose. That move - initiated by the district attorney - has been used only a couple of times in the past 15 years here.

Civil grand juries can issue “accusations,” which are quasi-criminal statements issued to remove a public official from office when there are allegations of corruption or willful misconduct.

Jeff Berk, the deputy Sonoma County counsel who acts as the panel’s legal adviser, said he doesn’t think Sonoma County’s civil grand jury ever has taken that step.

Ravitch left open the possibility that further examination of the case - perhaps by the grand jury or some other investigative body - could result in a re-evaluation by her office down the line.

“As with any criminal case where there is no statute of limitations, if new evidence comes forward, I would certainly reevaluate it,” she said Wednesday. “That’s true with any criminal investigation.”

Still, given the conclusion by the latest grand jury to sidestep such cases, it’s unclear what review, if any, may happen next.

“I can’t speak to what any other investigative body may do,” Ravitch said.

Before releasing her report, Ravitch said she contacted the state Attorney General’s Office to ask whether it planned a review of the investigation or her report.

The Attorney General’s Office declined, Ravitch said, on the basis that no conflict or other cause exists to require a separate review.

Ravitch also said she contacted representatives with the FBI and the U.S. Attorney’s Office with regard to a civil rights investigation. She said she will forward her report to them for consideration of review.

An FBI spokesman said this week that those agencies are conducting a civil rights review of Lopez’s shooting. But he declined to be more specific.

“If any aggrieved party wishes to seek the Attorney General’s review, this office will cooperate fully in any examination they may undertake,” Ravitch said this week.

In 2000, a U.S. Civil Rights Commission advisory committee recommended Sonoma County, Santa Rosa and Rohnert Park implement citizen review boards, noting the grand jury’s lack of financial independence and organizational separation from local law enforcement.

Law enforcement supporters have long resisted calls for an independent civilian review board that would judge the actions of police, citing, in part, the grand jury review process.

But even members of the grand jury say that’s a misunderstanding of their role.

The civil grand jury’s role is that of a watchdog over the processes of local government agencies, to shine a light on whether an agency’s own policies and procedures are being followed.

The 19 grand jury volunteers and their legal advisers do not review the police or D.A.’s investigations, interview witnesses or examine evidence of criminal behavior. They wouldn’t judge, for example, whether either Gelhaus or Lopez were at fault or could have done anything differently to have changed the deadly outcome.

The 2013-14 forewoman, Cheryl Davey, said she found it interesting that Ravitch has talked about the D.A.’s office not having enough resources to take on complex investigations, even with its host of skilled attorneys, veteran investigators and access to forensic experts.

“And people think the grand jurors are going to have independent investigations?” Davey said. “Honestly, it’s unrealistic to think that the grand jury could go into the detail that the noninvolved investigating agency does.”

The grand jury has a $77,000 annual budget set by county administrators, no paid support staff and no resources to hire experts or professional investigators.

Ravitch said she will send the grand jury her full report and exhibits on the Lopez shooting, as well as the Santa Rosa Police Department’s investigation. She declined to speculate about what the grand jury might do with it.

“I am agreeable to speak to any group that wants to discuss my findings and the basis for it,” she said. “If it’s in a forum other than the civil grand jury as a means of review different from what we’ve done under the (countywide) protocol, I’m more than happy to do that.”

Grand juries have existed in this state since the adoption of California’s original Constitution in 1849-50. Forty-two states have some form of grand jury, but only California and Nevada require by law that grand juries be impaneled every year to conduct civil investigations of local government agencies.

The Legislature provides legal assistance for the grand jury - a Superior Court judge and a deputy county counsel, who review and sign off on their reports. Once selected and sworn in, grand jurors receive training to help them understand the laws and advice on how to conduct watchdog investigations, according to the California Grand Jury Association.

Civil grand juries have subpoena power, in that they can ask the presiding judge to issue an order to require someone to speak with them. But that rarely happens, Davey said.

Berk, the county attorney who advises the panel, said the group could choose to review Ravitch’s report and comment further on it.

“They could write a report saying they recommend taking another look,” he said. “But it has no authority to do anything other than make a recommendation.”

Their power, he said, is through media sources bringing attention to their reports, findings and agencies’ responses to their recommendations.

Both Davey and Jones said a more appropriate appraisal of critical incidents is likely to be found through the work of a subcommittee of the 21-member community task force established in the wake of Lopez’s death.

The task force is charged with exploring options and recommending a model for an “independent citizen review body.”

Its work continues.

You can reach Lori A. Carter at 762-7297 or lori.carter@pressdemocrat.com.