McGill v. Superior Court
128 Cal. Rptr. 3d 120
Cal. Ct. App.2011Background
- DA's August 2006 grand jury probe investigated Fleming for misuse of public funds; McGill testified early as a non-target witness about her role in the registrar trip and the memo; the DA sought indictments against Fleming and McGill, including a perjury count based on McGill's grand jury testimony; a January 12, 2006 memo (with lists and a spreadsheet) later surfaced among Smollar's papers; the grand jury did not recall Smollar or McGill to explain the memo, and McGill’s perjury indictment proceeded despite concerns about potential exculpatory evidence; the court ultimately dismissed the perjury count, granting a writ of mandate and directing dismissal of count 4.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the grand jury was properly instructed regarding exculpatory evidence. | McGill | DA | Yes, improper; requires recall/production of evidence to explain away the charge |
| Whether the grand jury should have recalled McGill to explain the January 12 memo. | McGill should have been recalled | No need; memo not explanatory | No need where no reasonable belief memo would explain away the charge |
| Whether the DA violated section 939.7 by failing to obtain exculpatory testimony from Smollar. | McGill | No violation; not exculpatory | Yes, it violated 939.7; recall could have explained away the charge |
| Whether indicting a non-target witness in the same grand jury proceeding infringes due process protections. | McGill | Not a due process violation | Yes, it infringed 939.5 protections; warrants dismissal of perjury count |
Key Cases Cited
- Johnson v. Superior Court, 15 Cal.3d 248 (Cal. 1975) (grand jury independence; exculpatory evidence and 939.7 duty)
- Hawkins v. Superior Court, 22 Cal.3d 584 (Cal. 1978) (grand jury procedure protections; due process concerns)
- Kalloch v. Superior Court, 56 Cal. 229 (Cal. 1880) (preliminary hearing comparable to indictment procedure)
- Bowens v. Superior Court, 1 Cal.4th 36 (Cal. 1990) (Prop. 115; preliminary hearings for indicted defendants)
- Berardi v. Superior Court, 149 Cal.App.4th 476 (Cal. App. 2007) (prejudice from incomplete disclosure to grand jury)
- Gnass v. City of Lynwood, 101 Cal.App.4th 1271 (Cal. App. 2002) (prosecutorial instructions; failure to instruct on knowing element)
- Cummiskey v. Superior Court, 3 Cal.4th 1018 (Cal. 1992) (manner of grand jury proceedings; potential 995 challenge)