A person subject to indictment by a grand jury must be afforded certain protections: the prosecution cannot bring the charge of perjury before the same jury that heard the questioned testimony because they already have a “state of mind in reference to the case;” the alleged perjuror is entitled to notice of the right to bring exculpatory evidence to the attention of the grand jury; and, the prosecutor’s instructions to the jury must focus on the elements of materiality and knowledge of falsity. McGill was the first witness who was examined by the grand jury about a charge of misappropriation of funds by Fleming. McGill’s testimony about compilation of a list of voters and the disposition of that list was later contradicted by other evidence which had been seized from a third party, Smollar. The prosecutor did not call Smollar and informed the grand jury that anything he might say would be irrelevant. McGill was not recalled to explain the contradiction of her testimony. The grand jury is required by Penal Code section 939.7 to order the production of evidence within its reach when it has reason to believe that such evidence will explain away the charge, and in this case the “knowing” element of perjury. The grand jury that returned an indictment against Fleming also returned an indictment against McGill for a charge of perjury which failed to spell out exactly what McGill was to have falsely told the grand jury under oath. McGill filed a motion to dismiss pursuant to Penal Code section 995 and the denial of that motion resulted in this writ proceeding. The opinion includes a primer on grand juries, a description of the protective role of the grand jury, and the “ham sandwich” maxim that a grand jury will indict a ham sandwich if asked to by a prosecutor. That is what occurred here. There should have been a separate grand jury convened that was separate from the one that heard McGill’s testimony. This is a structural problem because the grand jury has to be entirely neutral and not be directly involved in the case. The witness is effectively stripped of the normal protections when the same grand jury that hears the testimony indicts the witness for perjury. The prosecutor should not have mislead the grand jury by instructing them that the most relevant witness imaginable would not be called because of lack of relevance when the prosecutor’s decision was motivated by other concerns. Also the grand jury has a duty to evaluate witness credibility so as to fulfill its duty under section 939.7 by ordering the production of evidence. Recalling McGill was essential to providing an opportunity to address the elements and provide notice of the right to present exculpatory evidence.
A writ is not untimely when the delay in filing the motion to dismiss was due to the prosecutor’s failure to provide more specific details than an allegation that somewhere in the grand jury McGill committed perjury. Penal Code section 1510 provides that the denial of a motion to dismiss may be reviewed by pretrial writ when the motion was made no later than 60 days following the arraignment on a felony charge by indictment or information, “unless within these time limits the defendant was unaware of the issue or had no opportunity to raise the issue.” The prosecutor’s office, after several opportunities for supplemental briefing had yet to quote the precise testimony that it asserts was perjurious. Aside from the vague allegation, the record was uncommonly voluminous and a vital piece of evidence was not provided until many months after the indictment and in the course of normal discovery. Defense counsel could not have been expected to divine the full ramifications of the same grand jury issuing the indictment after having heard the alleged perjury within 60 days when there is no California authority which addresses the point.
Drawing an incorrect legal conclusion which favored the “client”” and to see only their side of the case does not equate with bad faith. Sanctions against the prosecutor were considered, but he was given an opportunity to explain why sanctions should not be imposed for concealing evidence. The prosecutor assured that his office was not aware of exculpatory evidence from Smollar. There was simply a legal error in evaluating whether the evidence reasonably tends to negate guilt. There should be no sanctions for a legal error.