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.
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.