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Orange County sheriff officials are involved in selecting the grand jurors that investigate it, a role some legal experts say is problematic.

“If the Sheriff’s Department is somehow under investigation by the grand jury, it is a clear conflict of interest for them to be involved in the selection,” said Steven Duke, a Yale Law School professor who served as a U.S. Supreme Court law clerk.

“This kind of one-sided screening mechanism is troubling,” said Lawrence Rosenthal, a former federal prosecutor who teaches law at Chapman University.

“It essentially gives the department sort of an ability to screen out someone they might not want on the jury,” said a former high-ranking sheriff executive, speaking on condition of anonymity.

Sheriff officials perform the official background investigations of potential grand jurors, which go beyond checking for criminal history.

As part of the review, sheriff investigators interview the applicants, determine if their homes are “neat and well-kept,” and interview their neighbors. They then prepare reports for judges on whether applicants “appear competent to serve as a Grand Juror.” The reports go to the judges who do their own interviews of the applicants and narrow the pool from about 90 people to about 30 finalists for the 19-member grand jury.

“That is a conflict, like so many others [in] the county, that would be so easy to eliminate,” said the former high-ranking sheriff official. Background reviews should be done by “anybody but the people who are potentially going to be subject to that [grand jury] investigation,” the former official said.

Courts in California’s two most-populous counties – Los Angeles and San Diego – also have their sheriff’s departments handle grand jury background investigations.

But not every county court approaches it this way. In neighboring Riverside County, the state’s fourth most-populous, local law enforcement has no role in grand jury background investigations, according to court officials there. Instead, the checks are conducted by court staff who search criminal histories, with judges conducting all interviews with the applicants.

Orange County Superior Court officials didn’t respond to questions for this article, including why the investigations are conducted by the Sheriff’s Department rather than an agency that is not under the grand jury’s watchdog jurisdiction.

In a statement, the Sheriff’s Department said it conducts the background investigations at the court’s request, resulting in a confidential two-page questionnaire for each applicant that it sends to the judges on the grand jury selection committee.

“The Sheriff’s Department’s role is to fact find and disclose any and all relevant information to assist the court in this process. The ultimate selection of Grand Jury Members and Alternates is solely the decision of the Superior Court judges,” the department said.

In the early 1990s, the OC District Attorney’s office conducted background checks of grand jury applicants. That changed in 1994, when the court moved it to the U.S. Marshals Service, a federal agency not under the grand jury’s local government jurisdiction.

The switch came after “several civic leaders had expressed discomfort with the background checks, because they feared the district attorney’s office, which prepares criminal cases for presentation to the grand jury, could exclude candidates at will,” according to a Los Angeles Times report.

It’s unclear when, and why, the court moved responsibility for the background checks from the federal Marshals to the Sheriff’s Department. Court officials didn’t respond to a question about it.

In recent years, OC grand jurors have cleared Sheriff’s Department management of wrongdoing. The most prominent example came after a judge and appeals court found the Sheriff’s Department officials engaged in “systemic” violations involving jailhouse informants, withheld key evidence from defendants, and in some cases lied in court.

The grand jury, in a June 2017 report and news conference, said they had investigated for months and found the scandal was a “myth,” without mentioning the appeals court’s findings of wrongdoing.

That grand jury was led by the niece of an elected official who publicly supported Sheriff Sandra Hutchens through the informant scandal. The official, State Sen. Pat Bates (R-Laguna Niguel), had cast a deciding vote as a county supervisor to hire Hutchens as sheriff during a split decision in 2008.

Bates’ niece, Carrie Carmody, served as forewoman of the grand jury that cleared Hutchens’ department of intentional wrongdoing and called on Judge Thomas Goethals to stop looking into Sheriff’s Department misconduct regarding misuse of jailhouse informants.

Bates had nothing to do with Carmody applying to serve on the grand jury, they each said in statements. Bates said she hasn’t spoken with her niece for at least 20 years.

Regarding the Sheriff’s Department role in grand jury background investigations, Carmody said, “I do not believe there was, or is, any conflict or corruption in the selection process. The [grand jury] selection process is quite lengthy and has several steps. The [Sheriff’s Department] background check is but one step of many in the process and [two] steps removed from the final selection.”

Goethals had found two sheriff’s deputies lied in his courtroom to hide records of how informants were moved in the jail. A state appeals court unanimously upheld that finding in late 2016, six months before the grand jury finished its probe.

“There was overwhelming evidence supporting the trial court’s conclusion [sheriff’s deputies] [Ben] Garcia and [Seth] Tunstall intentionally lied or willfully withheld information,” states the appellate ruling, which the grand jury didn’t mention.

At least six convictions for serious crimes were overturned or dismissed as a result of the informants scandal. In one case, a rare plea deal granted a murder defendant probation instead of jail time.

Scott Sanders, the public defender who brought to light the informant scandal, said the grand jury wasn’t interested in the details of cases when he was called in for an interview as part of their months-long probe.

“I came in there thinking that we were going to be in hours and hours of deep discussion discussing these things,” Sanders said in an interview this month. “I had written a ton about it. And they did not want to engage in any detailed analysis of cases.”

Some of the deputies later refused to testify in court, citing their 5th Amendment right to not have to incriminate themselves of potential crimes.

“You won’t get this in 20 careers,” Sanders said of deputies pleading the fifth. “And not only [was the grand jury] disinterested in this, they [were] kind of forwardly opposed to advancing [an investigation into] this,” he added.

Carmody defended the grand jury’s approach to the informant report, saying the panel was neutral.

“We don’t have a dog in this fight,” she said at the time. “We’re not looking to exonerate or hang anybody up. We wanted to uncover the truth.”

Voice of OC asked Carmody this week about Sanders’ concerns about a lack of interest in case specifics. She said the report was focused on ways to improve the system, not particular criminal cases.

“Our focus was not on individual criminal cases but rather an investigation of the system in place,” Carmody wrote.

“Our investigation aimed at identifying problems and offering recommendations for improving operations at the [Sheriff’s Department] and [DA’s office] with respect to the use of informants. While Mr. Sanders may have wished our investigation was of a different nature, he was not privy to our deliberations and has no foundation to speak of what, who or even how we approached our charge.”

This June, the grand jury looked into a sheriff contractor’s illegal recording of thousands of inmate phone calls with their attorneys, which sheriff’s deputies could access for years before the recording was stopped last summer.

Under California law, it’s a felony for anyone to record or eavesdrop without permission on inmate phone calls with attorneys, doctors, or clergy.

Overall, the grand jury complimented the sheriff officials’ handling of the situation, saying they acted “with good intentions” once the recordings became widely-known last year.

“Throughout its investigation, the Grand Jury found that all involved parties handled this situation professionally, with transparency and with good intentions,” their report states.

When the court has described the grand jury selection process in news releases each year, it has left out the Sheriff’s Department’s role in vetting applicants.

“More than 150 Orange County residents applied for the upcoming term. The 25 judges of the Grand Jury Recruitment and Selection Committee reviewed applications and selected top candidates who were each interviewed by judges from the committee,” states the court’s news release announcing the 2017-18 grand jury.

“Superior Court judges voted to approve the final slate of candidates.”

Court officials did not respond to a question asking why the Sheriff’s Department’s role was not mentioned.

The background checks are described in the grand jury’s application materials, but hasn’t been in the descriptions the court sends out to the news media.

Los Angeles and San Diego counties also have their sheriff’s departments conduct grand jury background checks. Some of California’s other large county courts have opted to do it differently.

Riverside County’s court has its own staff conduct a criminal history check. Sacramento County Superior Court also does not involve local law enforcement in grand jury background investigations, according to its spokeswoman. Instead, criminal history checks are conducted by state officials who don’t fall under the grand jury’s local jurisdiction.

California law requires two types of grand juries – criminal and civil – which Orange County combines into a single panel.

Criminal grand juries hear evidence from prosecutors and approve charges, known as indictments.

The civil grand jury, also known as a “watchdog” grand jury, is tasked in state law with investigating local government and issuing reports about misconduct and systemic problems. Each county has its own civil grand jury, which serves for one-year terms.

Most major counties have separate panels for these functions, and Orange County is the largest California county to combine them into a single grand jury.

California grand juries’ powers are wide-reaching, including subpoenaing officials to testify and turn over documents, and initiating a jury trial that can remove an elected official from office for misconduct.

Nevada, which is one of the few other states that still has a civil grand jury system, starts its grand jury selection by mailing hundreds or thousands of letters at random to citizens inviting them to apply. Judges then narrow the applicant pool.

California lets courts use an application process for criminal grand juries, known as the “key man” or “pick a pal” system, rather than the state’s usual jury selection process of randomly contacting citizens through driver’s license and voter registration databases.

Until the 1960s, “key man” was used to choose grand juries in most federal and state courts. But it generated concern about selection bias, leading Congress in 1968 to outlaw it for federal grand juries.

Federal grand juries are “selected at random from a fair cross section of the community in the district or division wherein the court convenes,” according to the law.

Many states followed suit in banning the “key man” system for local grand jury selection, including Texas in 2015.

Most states now require a random selection from large-scale databases like voter registration and driver’s licenses – the same process used to pick juries for civil and criminal trials.

Los Angeles County also moved away from the “key man” system for criminal grand jury selection in 2000, in response to criticism that the jurors weren’t representative of county residents.

In 2000, LA County judges nominated only white residents for its 23-member grand jury, despite the county’s population being 46 percent Latino, according to news coverage at the time.

That same year, LA County separated its civil and criminal grand juries and ended the “key man” selection for its criminal grand juries. It selects its criminal grand jury members through the same random process as trial jurors.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.