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SAN JOSE — The hearing in Room 22 of the old courthouse here seemed eerily similar to a homicide trial. Often bordering on sarcasm, Santa Clara County Deputy District Attorney Lane Liroff sharply questioned a witness. But the person getting grilled by Liroff wasn’t a hostile defense witness. Instead, he was a California Bureau of Narcotics Enforcement supervisor answering questions about field errors that may have played a role in the death of Rodolfo Cardenas. The sometime construction worker was shot in the back and killed during a chase in San Jose on Feb. 17 after he was mistaken for a fugitive on parole. “Is it fair to say that the information you had was based on assumptions?” Liroff asked agent Steven Davies. Liroff was questioning him about how agents had prepared to apprehend David Gonzalez, the original target for arrest. The testimony marked the fourth day of an atypical legal proceeding in Santa Clara — an open grand jury. It’s the second time in less than a year that the district attorney’s office has opened a grand jury to the public after outcry over law enforcement involvement in a shooting. “I have never heard of this,” said Jerry Lewi of Thousand Oaks, vice president of the California Grand Jurors Association. The statewide organization boasts more than 400 members and promotes the grand jury system, in addition to offering voluntary training for new grand jurors. “I would concede that it is rare and even unprecedented.” Santa Clara’s previous hearing involved the shooting death of Cau Bich Thi Tran, a Vietnamese woman who brandished a vegetable peeler that prosecutors said resembled a knife. The officer was cleared after a weeklong grand jury hearing. Santa Clara County Assistant District Attorney Karyn Sinunu concedes that holding two open grand jury proceedings in less than a year is “very unusual.” Some prosecutors predict that Santa Clara County’s example may lead other California jurisdictions to open up grand jury hearings into sensitive or controversial shootings. Sinunu said she’s heard from Fresno prosecutors interested in the idea, and DA George Kennedy has also heard from several counties. Thursday’s hearing was packed with family members and supporters, all listening intently. The audience perked up at several points — including one moment when Liroff compared the agents involved in the grand jury investigation to the “Keystone Cops.” Liroff pressed Davies — supervisor of the officer who shot Cardenas — through most of the morning in an occasionally heated exchange. The hearing is expected to continue through the early part of this week. At the close, the grand jury will decide if agent Michael Walker should be charged with a crime. “I don’t know of any other county that has done this,” Sinunu said, adding that some counties opt for a coroner’s inquest instead. During a coroner’s inquest, a prosecutor and jury are present — but the only finding the jury can make is the cause of death, such as suicide or homicide. There are drawbacks to inquests, and having an open grand jury is better in most cases, Sinunu said. “If they conclude it isn’t justified, then you have questions about whether the DA will charge someone,” she said. “We think that when it’s a controversial shooting that the public may be distrustful, and the DA believes that public confidence in the system is very important.” This is the third time an open grand jury has been held since Kennedy took office in 1990. Prosecutors say the office usually holds secret proceedings but opens the doors when they believe the public will benefit. Prosecutors in other jurisdictions are paying attention. “An open grand jury captures public interest because it is so unusual,” said Jeffrey Stark, grand jury adviser and senior deputy district attorney with the Alameda County DA’s office. That doesn’t mean Alameda’s office is planning to change its system. “I can’t imagine what the circumstances would be where we would have an open grand jury hearing,” Stark said. “We’re certainly willing to learn from the experience that other counties have when they undertake things that aren’t a matter of routine.” HISTORICALLY SECRET Grand jury proceedings are a holdover from British colonial days and were first used here as early as 1635. The hearings have since been used regularly throughout much of the American legal system. Traditionally, they’ve been conducted in secret to protect those involved. Some experts say that’s a major problem and laud the county’s decision to open the hearings. “The power given to grand jurors is enormous. The possibility for abuse and misuse is always there, and our system usually only benefits from more openness,” said Ellen Kreitzberg, a professor at Santa Clara University’s School of Law and a criminal justice expert. Most California counties have kept grand jury deliberations secret. But in recent years, experts say, that has changed slightly — in part due to increased media coverage of legal events and political pressures. Attorneys say political pressure likely played a role in both Santa Clara cases. “It’s very unusual to open up grand jury proceedings because the whole basis for a grand jury is to have an investigation that is done privately to protect people in case charges are never brought,” Kreitzberg said. “[An open hearing] is usually done when the DA questions the public perception of the process and makes a decision to allow people to see [the hearing] to avoid questions or challenges later. I’m not sure it always has that effect, but that’s the rationale,” she said. Kreitzberg, who practiced criminal law in Washington, D.C., from 1978 to 1988, said she does not recall an open grand jury proceeding ever taking place while she worked in the city. And although she said it’s good that some of the proceedings are opening up, she said that could also “give rise to a lot of questions and a lot of challenges.” “Most DAs are reluctant to open these proceedings because they don’t want to create a precedent,” she said. They don’t want “people saying �you opened this one, why not this one?’ You end up having to justify the exception.” “Each DA is making a decision based on factors that don’t necessarily relate to justice. � It may create other problems, but the DA might have decided that the main problem was addressed,” she said. Others wonder how any prosecutor can determine when it’s right to open grand juries to scrutiny. “In an appropriate case, it might be the right thing to do, but I can’t tell you what I think an appropriate case is,” Stark said. “The set of circumstances that would make you want to have an open grand jury are rare.” FALSE HOPE? The problem with open grand juries is that they are a public relations tool aimed at persuading victims not to pursue civil claims against law enforcement, some attorneys say. “From time to time police use excessive force, and they should be held accountable — in civil court,” said Andrew Schwartz of Walnut Creek civil firm Casper, Meadows & Schwartz. Schwartz is representing the Tran family in a wrongful death suit against San Jose’s police department. Schwartz said the entire open grand jury process was frustrating and added that prosecutors should not impanel any type of grand jury unless they think it will lead to an indictment. “From day one, I told everyone who wanted to listen that there wasn’t going to be an indictment because the DA wasn’t seeking an indictment,” Schwartz said. “I don’t remember the last time a police officer was indicted for a shooting — it just doesn’t happen around here.” “If the DA doesn’t believe that he has enough evidence, he shouldn’t hold this to cover for the police,” Schwartz said. Asked if the evidence presented during an open grand jury could imperil a civil suit, Schwartz said, “Not one bit.” “[Prosecutors] would like to think that it will discourage civil litigation, but it doesn’t,” he said. “If the prosecutor doesn’t believe in his heart that there will be an indictment, there shouldn’t be a grand jury.”

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