Sheriff Smith Will Contest Grand Jury Conclusions and Its Legitimacy, Says Lawyer

This article has been updated, Jan. 17.

Santa Clara County Sheriff Laurie Smith this week will be challenging in court the legality of the county civil grand jury proceedings that resulted in accusations of corruption for the six-term sheriff, according to her lawyer.

Lawyer Allen J. Ruby of Los Gatos told San Jose Inside this week that in a San Mateo County Superior Court hearing via Zoom on Friday he will contest, on Smith’s behalf, the legitimacy of the grand jury proceeding that resulted in a scathing report against Smith last month that could result in her removal from office.

The initial hearing of the civil grand jury’s report, akin to a plea hearing in a criminal case, was to have been heard Wednesday in San Mateo County Superior Court.

It was rescheduled Jan. 7 to this Friday because of a scheduling conflict for San Mateo County Superior Court Judge Nancy Fineman.

Friday’s session is likely to be brief. Either before or after stating his client’s intention to challenge the legality of the grand jury’ probe of the sheriff, Ruby said that when Fineman asks Smith if she agrees with the grand jury findings, “She’ll simply say, ‘No.’”

That statement will trigger the court’s calendar for a rare trial of a sitting public official, whose seat happens to be up for election this year. Smith has not said whether she will seek a seventh term.

At the Jan. 14 hearing, Smith did not enter a plea. Fineman gave Smith's attorneys and prosecuting attorneys at least through April to submit pretrial arguments.

SF DA, San Mateo Judge

Fineman at that point will likely ask attorneys for both sides, Ruby and Gabriel Markoff, Assistant District Attorney in San Francisco’s Special Prosecutions Unit, to submit legal arguments on whether the case should be dismissed outright prior to a full-fledged trial in San Mateo County.

A multi-year investigation by Santa Clara County District Attorney Jeff Rosen of misdeeds by some of Smith’s senior officers combined with investigations and a no-confidence vote by the Board of Supervisors got the case moved to San Mateo County last month because of potential conflicts.

Typically, the local county counsel would handle a civil case arising from a civil grand jury report, but Santa Clara County looked for another county to handle the case, because of the potential conflicts of interest. That’s why the prosecution of the civil case against Smith is being handled by San Francisco District Attorney Chesa Boudin, himself the object of a public recall vote in June

Calls for Smith’s resignation by numerous local officials, led by San Jose Mayor Sam Liccardo plus county supervisors, added to an ominous climate faced by the sheriff even before the Dec. 13 grand jury report. After an initial presentation arguing for better mental services for jail inmates before the no-confidence vote in August, Smith has been isolated and silent. She continued to decline any public comments this week.

Ruby is no stranger to high-profile cases.

He represented clients like former San Francisco Giants slugger Barry Bonds and successfully defended the National Football League in a billion-dollar suit brought by Oakland Raiders owner Al Davis. Hewlett-Packard retained Ruby in 2010. Facebook has also hired Ruby to represent it in litigation among founders.

Not a criminal case

A civil grand jury, a panel of residents empowered by the courts, typically issues reports annually about improving government operations. It’s different from a criminal grand jury, which a district attorney would use to bring criminal charges against a defendant.

The penalties in this civil case would not involve jail time, but removal from office.

If Smith is removed, or if she resigns before that point, the county Board of Supervisors would appoint a new sheriff.

Investigating and removing municipal and county elected officials from office through a grand jury accusation alleging, as the grand jury did with Smith, “willful and corrupt misconduct” is rarely used, although permitted by a 1943 state law.

In its Dec. 13 report, the Santa Clara County Civil Grand Jury listed these accusations of misconduct by Smith:

  • Trading concealed carry weapons permits for campaign donations
  • Unfairly rejecting gun permits for non-VIPs
  • Failing to provide non-VIPs timely notice of the status of their gun permit applications
  • Accepting gifts in excess of $500, including tickets to a Sharks suite
  • Failing to report the gift of the Sharks tickets;
  • Committing perjury for omitting that gift from her Form 700, a document in which an officeholder must list certain financial information;
  • Failing to cooperate with the investigation of injuries suffered by prisoner Andrew Hogan during a prisoner transfer.

Mayor Liccardo reacts

The trial of a sitting sheriff, if Smith continues to refuse to resign and fight the grand jury report, will continue into the midst of a busy local election season. Supervisors are up for re-election, San Jose will get a new mayor, city council members will be on the ballot and both Rosen and Smith, if she decides to run, are up for re-election.

In this politically charged atmosphere, perhaps the most stunning response to the grand jury report came from a politician not directly associated with the case, but in whose city most of the alleged transgressions occurred: San Jose Mayor Sam Liccardo.

“The civil grand jury has spoken,” Liccardo said in a statement last month. “Sheriff Smith need not wait for the decision of a grand jury to resign.”

Kevin Jensen, a retired sheriff’s captain who challenged Smith in the 2014 election, said in a statement that “what has transpired for so long has caused much pain. Our community deserves so much better. My voice joined many other courageous voices over the past 10 years in calling for positive change.”

The Hogan videos

Santa Clara County, as part of its investigation of Smith, in late October released a bombshell as the public case against Smith accelerated: 36 videos of the 2018 transfer of Hogan, showing in shocking detail how the former inmate suffered traumatic brain injuries while being transferred between county jails.

Supervisors said they were fulfilling a pledge at the start of their investigation of possible misconduct by Smith, to be transparent.

The supervisors agreed to the public release of audio/visual recordings of the incident involving Andrew Hogan and the status of County compliance with consent decrees involving the jail. 

For additional background, see Item No. 20 at the Sept. 17, 2021 supervisors’ meeting  in which Office of Correction and Law Enforcement Monitoring shared a report with a timeline of the events in the videos.

There are 36 videos, some brief notes are included below.

  • #4: Hogan in cell, in distress. Hits head against wall.
  • #5-#11: Interactions with Hogan in cell, transfer to waiting area.
  • #12-#17: Hogan in waiting area.
  • #18-#23: Hogan moved from waiting area into vehicle.  Difficulties getting Hogan into vehicle. Not belted in. Different angles.
  • #24-#25: Hogan injuring himself in the vehicle, vehicle arriving in sally port at Main Jail. Asks for water. They close the door on him. Can hear him begging for water from within the vehicle.
  • #25-#29: Hogan in distress in vehicle. Correctional deputies strategizing about process. One deputy says, "He can do all the damage he wants."
  • #32: Ambulance arrives. Hogan unresponsive.
  • #33-36: Hogan transferred into ambulance.

The video/audio recordings of the Aug. 25, 2018 incident involving Hogan are publicly available on the Jail Reforms website.

These recordings consist of body-camera and other video recordings captured by the Sheriff’s Office relating to the incident involving Hogan. The videos have been redacted as required by law, including to protect Hogan’s privacy rights in medical and mental health information.  County Counsel James Williams prepared a public report on the status of the county’s compliance with the consent decrees involving the jail.  This report is posted to the Jail Reforms website.

Read the complete grand jury report.

7 Comments

  1. Perhaps the SJI should do a background piece on Karen Delaney, Foreperson of the Civil Grand Jury. I think that it would be helpful to understand who is running the “watchdogs.” Are they really acting as watchdogs or attack dogs? The filing itself was very strange. Numerous allegation that were left in the document and merely crossed out. Why? In the day and age of word processors, why file a clearly messy document?

    I don’t have enough information about the allegations in the Grand Jury filing to make a reasoned decision about whether any of them are true or not. What I do know is that the Dem machine, supported by the local Marxist media, always fires up the smear articles every time Sheriff Smith is up for re-election. Smith is the only elected Rep in the County (I count Wasserman as a RINO). Each election cycle the allegations become more and more histrionic.

    Additionally, many of the issues that the Sheriff has had to deal with result directly from the SCC Board of Sups failure to fund mental health services. They fail to take care of the mentally ill (and the Sheriff has been asking them to fund adequate mental illness facilities) and then when the mentally ill in up in jail, they blame the Sheriff for not giving the proper mental health treatment. The Sheriff’s department is not funded, trained or equipped to deal with the level of mental illness that the Supervisors have dumped into the criminal system.

    I would like to know more about Karen and her political activities. How does Karen support herself? Who does Karen represent? Does she even have a job? Where does she live? How does she live? Is she living at a reduced-carbon-footprint substance level (think Ralph Nader) or in opulence with a new Tesla every few years. What organizations does she or has she belonged to in the past ten years. Is Karen a Marxist, Communist, Capitalist, BLM or ANTIFA supporter, a Rep, a Dem or ?
    Is she actually named “Karen?” 😂

    How about an investigative piece or at least an interview.

    The Sheriff has every right, and in my view a duty, to defend herself and the department.

  2. I remember when Neville Longbottom got points for “STANDING UP TO YUOR FRIENDS”

    That is what is happening here to this “alleged” crooked cop. And i hope that we WILL see a trial and let the jury make the call.

  3. I wonder if HB received a CCW permit in exchange for writing that comment. Maybe made a $10,000+ campaign donation to Laurie Smith.

    There’s already been so much evidence of the blatant corruption. It’s well known that Laurie Smith withholds CCW permits in exchange for campaign donations. And this is old news, with this being dragged out for YEARS. Withholding CCW permits from those who otherwise qualify for it can arguably be considered unconstitutional (2A). How much longer does this have to be dragged out? How much longer will law abiding citizens be denied their right to bear arms for self protection, especially in light of the recent massive spike in violent crime in the Bay Area?

  4. Well like January 6th, this looks like the Fox is trying the chickens for embezzling eggs!
    Let the jury of handpicked weasels decide……………………….

  5. About 36 years ago, I worked as a civilian in the Sheriff’s Office under Cowboy Bob. It was common knowledge that concealed weapons permits were for his friends and contributors. The Mercury News columnists and news articles mentioned things like this, but with winks and nods. Many of the officer ranks under Laurie Smith came up during that time and in that atmosphere; it was the good old boys club. Many of them continued practices left from this time on their own, in spite of Sheriff Smith trying to clean things up.
    Judge Manley had to create a new Department of Corrections because there were so many escapes and scandals under Sheriff Winter. There were almost 4 escapes per day at some periods in the lead up to that decision.
    Sheriff Smith is still correcting the messes of those times. When an inmate was beaten in the jail, she went out and bought cameras herself as the procurement people in County Admin were so many months behind on requests. The deputies who were having a fight club with inmates and sending racist emails have been dealt with, against the wishes of many in her officer ranks.
    Sheriff Smith has tried to open the department to people of color and to women. She has implemented programs to help women prepare for agility tests that are designed for the male body center of gravity. She knows that women have to be twice as good at their jobs to get half of the recognition that men get.
    Sheriff Smith is one of the most available public officials in Santa Clara County. Mayor Liccardo should be worrying about the serious problems in San Jose PD rather than attacking Sheriff Laurie Smith because he sees her as an easy target because she is a woman and not as popular as some of the good old boys who have gotten their feelings hurt by losing when they ran against.
    I hope the judge will throw this out and see this attack for what it is. I absolutely support Sheriff Laurie Smith!!!

  6. @WendyLS, I don’t have a strong opinion either way on Sheriff Smith or her past & present competition. All I would want is a Sheriff that is going to do the work of Enforcing Law & Order, and dedicated to prosecuting & incarcerating criminals to maintain a safe environment for the law abiding, taxpaying residents of the county.

    Not a “woke” or Pro-crime advocating activist elected official.

    But the constant attacks from the SJSpotlight and SJI snippets of negative ‘news’ drive me to her support based on the majority of Pro-Crime / Anti-Law & Order advocating & activism these online publications push.
    (it definitely does not seem to be unbiased journalism)

    As we have seen in the past with Click-Bait news and biased media smearing of now Justice Brett Kavanaugh.

    Will the next set of articles be accusing Sheriff Smith of running
    a Child Trafficking Ring in juvenile hall or
    maybe providing Sanctuary to Violent Criminals that Illegally crossed
    our open Southern Border (oh-well that one may be true).

    Will the local media find their ‘Michael Avenatti’ ?
    And an equivalent group of Nut-Jobs to provide a ‘never ending story’ -line
    to fill news pages?

    Waiting to see them trot out Sheriff Smith’s counterparts to
    Christine Blasey Ford?..
    Deborah Ramirez ?…
    Julie Swetnick ?…
    Judy Munri-Leighton ?…
    etc?

  7. TO: VV

    I didn’t get a CCW for writing the comment. I didn’t donate $10K to her campaign.

    We are in complete agreement about one thing: The State of California would be way ahead if it became a “shall issue” instead of a “may issue” state.

    Provide some reasonable standard for background and training and if the citizen meets those, issue him the permit. If you have a clean record and can safely handle a firearm, you should be entitled to a CCW permit.

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