San Francisco Chronicle - (Sunday)
Boudin sees grand juries as fast track
Daylight was just beginning to wash over the Tenderloin on a late March day in 2017 when an assailant in a white jacket approached Robert Matthews, stabbed the 47yearold homeless man in the neck, head and face, and left him bleeding to death on the Golden Gate Avenue sidewalk. Within 10 hours, police believed they had their man.
The evidence against Federico Freeman seemed strong. Surveillance footage, eyewitnesses and Freeman’s own admission placed him at the scene of the crime, officials said — a rare windfall for homicide investigators often faced with circumstantial cases.
But for more than three years, Freeman’s case languished in court with no trial date in sight. It’s now one of the more than 1,200 cases in San Francisco that have been open for more than two years, according to prosecutors. It’s a backlog that has for years choked the city’s trial system and delayed justice for victims and their families as well as defendants.
But the case picked up momentum in November, after Freeman became the first person since 2018 to be indicted by a San Francisco grand jury. The prosecutor who handled the grand jury proceeding — used to determine if enough evidence exists to warrant an indictment — was District Attorney Chesa Boudin.
Criminal grand juries have been convened in San Francisco Superior Court only a handful of times in recent years, with prosecutors instead choosing to file charges directly. Boudin has recently begun embracing fasterpaced grand jury proceedings in an effort to clear a backlog of cases that’s only grown longer since the pandemic began.
“It’s unacceptable that we have so many cases that are so old, especially cases that are so serious,” Boudin said in a recent interview. “As soon as we found out that the court would agree to convene a grand jury for us, I told my team we need to prioritize serious and old cases.”
But Boudin’s policy shift toward grand juries — a marked change from previous district attorney administrations — is raising concerns among defense attorneys, who, along with their clients, are shut out of grand jury proceedings.
There were 5,593 open cases on Boudin’s desk when he took office last January, 1,127 of which were more than two years old since they were filed, according to the District Attorney’s Office. As of last week, the office had 5,048 open cases, 1,283 of which were older than two years.
In one extreme example, a homicide suspect has been awaiting trial for more than 10 years, Boudin said.
In grand jury proceedings, a panel of civilians hears evidence from prosecutors — but not from defense attorneys — and decides whether there’s enough probable cause to indict the person accused of a crime. Preliminary hearings, where defense attorneys get to crossexamine witnesses, can take longer.
Older cases present challenges for prosecutors. Witnesses’ memories fade, some move out of state or die.
“The longer we wait to move cases forward, the harder it becomes for us,” Boudin said. “So it’s also unfair to victims and families of victims who want some closure.”
To encourage his staff to bring more cases to grand juries, Boudin took on the first one himself. A former public defender, Boudin had never litigated as a prosecutor until arguing the Freeman case before a threeday grand jury hearing in November.
It was also the first time in recent history that the city’s top prosecutor argued a case in a courtroom, according to the District Attorney’s Office. Neither of Boudin’s most recent predecessors, Kamala Harris and George Gascón, did so during their time in office.
“I thought it would be good for morale,” Boudin said, noting that most attorneys in his office have never taken a case to a grand jury. “I really want to ... make sure that ( we’re) using all the resources and procedures available to us to help move old cases forward.”
There are several reasons cases get logjammed. Some of the most serious cases — those involving crimes such as rape and homicide — may require exhaustive research to gather and argue evidence from attorneys already overwhelmed with other cases. Other delays may stem from defendant competency questions, courtroom bandwidth and, in 2020, a pandemic that impeded nearly every government function.
In Freeman’s case, there was no good reason for the holdup, Boudin said. In these cases, grand jury proceedings allow prosecutors to sidestep legal hurdles that come along with preliminary hearings, and set the case on track for trial.
Freeman, who is currently representing himself, told The Chronicle that he’s not guilty and accused police of tampering with the surveillance footage. Even after nearly four years in jail, Freeman said he was in no rush for trial.
“I would like a very fair trial, so I have to investigate the reasons someone would do that” to the victim, Freeman said. His trial is scheduled to begin March 5.
Boudin’s office secured six grand jury indictments last year, all obtained in the last two months of 2020, when courts allowed grand juries to convene again. San Francisco grand juries issued no indictments in 2019 and eight in 2018, according to the District Attorney’s Office.
Along with Freeman, last year’s indictments included former San Francisco police Officer Christopher Flores and the man Flores shot, Jamaica Hampton, who are both facing assault charges from a violent encounter in the Mission District last year.
Prosecutors in all California counties can choose to pursue a criminal case in one of two ways: a direct filing or through a grand jury. A direct filing prompts a public preliminary hearing, in which a judge decides whether there’s probable cause to forward the case to trial after hearing testimony from witnesses and evidence from prosecutors and defense attorneys.
Only the prosecutor argues before the private grand jury proceedings, and a pool of citizens, rather than a judge, decides whether there’s probable cause for trial. Defendants and their attorneys are shut out of the hearing, though prosecutors are also required to present any evidence that favors the defense.
The secretive nature of grand jury hearings has long frustrated defense attorneys, who say prosecutors can hardly be trusted to present adequate defense evidence. Defense attorneys regularly recite an enduring adage, that “a grand jury would indict a ham sandwich.”
Critics of the procedure include some of Boudin’s former coworkers at the San Francisco Public Defender’s Office. Danielle Harris, a public defender representing Hampton, said grand jury proceedings strip both parties of the ability to preview the strengths and weaknesses in their cases.
At a preliminary hearing, prosecutors can see their witnesses under crossexamination, and defense attorneys can gauge problems in their own cases.
“These sort of triedandtrue abilities to get at the truth of the situation are lost in the grand jury proceeding,” she said. “It’s why it’s been disfavored for decades.”
Laurie Levenson, a law professor at Loyola Marymount University in Los Angeles, said that while grand jury proceedings are commonplace at the federal level, state prosecutors have traditionally reserved grand juries for the more controversial cases.
“Some of the highprofile, difficult cases, where they thought there’d be a public reaction, were often given to the grand jury,” she said, pointing to the O. J. Simpson case.
Levenson said Boudin’s decision to tap grand juries to help clear a backlog is likely to be successful.
“They can probably do them fairly efficiently through a grand jury,” she said. “You can literally run a lot of cases through a grand jury very quickly.
“There are strategic reasons, efficiency reasons and political reasons to get these cases to a grand jury.”