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Officer Exonerated in Public Grand Jury Proceedings

Posted on Thursday, August 01, 1996 at 12:00PM

An officer-involved shooting in Santa Clara County was recently the subject of an unprecedented public session of the criminal grand jury, which exonerated the officer but raised questions and concerns about how such shootings may be investigated in future, high-profile cases. It is too early to tell whether the case involving Santa Clara County Deputy Sheriff Tom Langley is merely an aberration in response to intense public criticism or if it is a glimpse of things to come in response to claims of police brutality.

On March 2, 1996, Deputy Langley attempted a vehicle stop of a suspected drunk driver. The driver, Gustavo Soto-Mesa, led Langley and another deputy on a four-mile pursuit, running stop signs and traffic signals. The pursuit ended only when Soto-Mesa crashed his van between a parked boat trailer and an ambulance and fire truck that were partially blocking a narrow street in San Jose.

As Langley approached the van with his Colt .45 semiautomatic in the cocked and locked position in his right hand, Soto-Mesa ignored his orders to “freeze” and “get down.” Soto-Mesa climbed out of the partially-opened van window and began to walk quickly away with Langley close behind him.

When Langley reached out to grab Soto-Mesa’s shirt with his left hand, one or both of the men tripped and they fell together to the sidewalk. There was a “pop” as they fell. It wasn’t until Langley had handcuffed Soto-Mesa that he realized that the “pop” was the sound of his weapon discharging, and that Soto-Mesa had been shot in the head.

The local media seized upon the story – “Fleeing Driver Fatally Shot by Deputy;” “Family Members Want to Know Why Deputy Shot Unarmed Suspect;” “Coroner Confirms Man Shot In Back Of Head By Deputy;” “Killing By Deputy Has No Apparent Justification.”

Eyewitnesses claimed to have seen an execution-style killing. Local Hispanic and human rights groups staged protests, called for public hearings into the matter, and demanded that Langley be criminally prosecuted for Soto-Mesa’s death. Langley was represented by LDF Panel Attorney Gail Kavanagh of Carroll, Burdick & McDonough.

The case apparently posed a dilemma for the District Attorney. It is the policy of Santa Clara County, as in some other jurisdictions, that officer-involved fatalities are routinely referred to the grand jury to determine whether criminal charges are warranted.

But grand jury proceedings are usually closed to the public and completely confidential – so much so that the targeted defendant is not even allowed to have his or her attorney present during questioning.

It seemed clear that there would be no indictment against Langley – all the credible evidence showed that the shooting was accidental. But the grand jury’s failure to indict after a closed session would inevitably give rise to accusations of an official cover-up of racism and brutality.

In an apparent effort to quell the expected public outcry in the event that the grand jury declined to indict Langley, the District Attorney invoked a little known statute, Penal Code section 939.1, which provides for a public session of the grand jury where “the court, or the judge thereof, finds that the subject matter of the investigation affects the genera public welfare, involving the alleged corruption, misfeasance, or malfeasance in office or dereliction of duty of public officials..”

The Santa Clara County Superior Court granted the request of the District Attorney and the grand jury foreperson to open the grand jury proceedings to the public on the grounds that “the investigator affects the general public welfare involving allegations made by members of the community that a county law enforcement officer may have been derelict in the performance of his duty while attempting to apprehend Gustavo Soto-Mesa.”

The grand jury proceedings, which convened on June 18, 1996, were unlike any other type of public legal proceedings – although they retained some of the characteristics of a usual grand jury investigation, they also resembled the prosecution’s detailed presentation of physical and scientific evidence in a full-blown criminal trial, but without any of the familiar mechanisms designed to ensure due process at trial.

A grand jury investigation is usually an abbreviated proceeding in which the prosecutor, acting as the grand jury’s legal advisor, presents only such evidence as is necessary to support or negate an indictment. All questioning is by the prosecutor and the grand jurors and evidence is often presented by way of summary rather than by live testimony.

The targeted defendant is not permitted to present a defense or to cross-examine witnesses. As its legal advisor, the prosecutor is expected to present all relevant evidence – both inculpatory and exculpatory. As a result, the outcome of the grand jury’s inquiry will obviously be influenced by the biases and convictions that the prosecutor has developed about the case.

Grand jury investigations of officer-involved shootings usually take as little as a couple of hours to a couple of days in very complex cases. In contrast to the usually abbreviated process, the investigation into the Langley case took nearly five days.

Under intense public scrutiny, Deputy District Attorney Dale Sanderson was careful to avoid potential claims that any evidence or witness was omitted which could have, affected the outcome of the investigation. Even a relatively minor issue such as establishing the amount of alcohol and drugs in Soto-Mesa’s blood required the testimony of five witnesses.

Everyone who claimed to have seen or heard anything relevant were called to testify – including those whose testimony was so patently inaccurate or false that they would never be called at a criminal trial because their stories would crumble under cross-examination. Over five days, the grand jury heard exhaustive testimony regarding the physical evidence which contradicted every claim that the shooting was intentional and which led to the only rational conclusion – that Langley, a 16-year veteran with an impeccable service record neither intentionally nor recklessly killed Soto-Mesa.

In his closing summary, Sanderson advised the grand jury that it “would not be appropriate” to return an indictment. The grand jury took less than an hour to deliberate and agree.

It is difficult to tell as yet whether other jurisdictions will seize upon the public grand jury as a means for responding to community concerns about incidents of alleged excessive force. On the one hand, some argue that public proceedings may help to reassure a community that is anxious and angry over perceived law enforcement abuses. (It was not, however, apparent in the local media following the grand jury’s decision in this case that the public was at all reassured by the process.)

On the other hand, the advantages to such proceedings in most cases will not justify their cost – both to the public which pays the bill for extended and unnecessary proceedings and to the officer who must endure such an ordeal. Although the public proceedings in this case were probably not inherently dangerous, given the prosecutor’s competent presentation of the evidence and his stated conviction that an indictment would be inappropriate, the risks involved in opening such proceedings to the public may vary widely from case-to-case.

The view of the case that the grand jury and the public get is solely that of the prosecutor – and in a high-profile case, a prosecutor may feel compelled to appease public sentiment against the officer and may certainly be loath to state in a public forum that he or she believes an indictment is unwarranted. Grand jurors, too, are likely to feel the pressure of public scrutiny which could sway them against a subject officer.

One thing, however, seems certain – that in those jurisdictions which have no regular public forum for official investigation of officer-involved critical incidents, this case will be cited in support of arguments in favor of public grand jury proceedings. Indeed, the language of PC Section 939.1 would seem to apply to any high-profile of excessive force claim, as such claims will likely be considered to “affect the general public welfare” and involve allegations of “malfeasance in office or dereliction of duty” of a police officer.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.