McGill v. Superior Court (195 Cal. App. 4th 1454, 2011)

Opinion

SILLS, P. J,

I. SUMMARY

In mid-August 2006, the Orange County District Attorney’s Office convened a grand jury investigation into possible misuse of public funds by the superintendent of the Capistrano Unified School District, James Fleming. (See generally Fleming v. Superior Court (2010) 191 Cal.App.4th 73 [119 Cal.Rptr.3d 275] {Fleming).) The district attorney’s office’s theory was that the school superintendent had misused public resources by authorizing subordinates to compile lists of individuals who had supported a recall of the school district’s board of trustees in 2005. {Id. at p. 77.)

One of those subordinates was Susan McGill, the assistant superintendent of the school district until she retired in June 2006, just months before the grand jury began its investigation in August. McGill’s specific role in the alleged misappropriation was, according to the district attorney’s office, this: Superintendent Fleming sent assistant superintendent McGill, along with the school district’s public relations officer, David Smollar, down to the county registrar of voters to look at the various recall petitions that had been turned in, and to copy down names of recall supporters. Afterwards, McGill had her secretary create a spreadsheet of recall supporters using a school district database, and later the lists were forwarded to Fleming. (Fleming, supra, 191 Cal.App.4th at p. 80.)

The grand jury’s investigation began in August of 2006, and was not completed until May 2007, roughly nine months later. Fourteen witnesses appeared before the grand jury in that nine-month period, including Fleming, the target of the investigation. However, Fleming, knowing he was the target of the grand jury’s investigation, invoked his privilege against self-incrimination to most of the questions asked of him.

McGill was among the very first witnesses to testify, testifying relatively early in the process in mid-August 2006, right after the testimony of Kate McIntyre, who had been Fleming’s personal secretary. McGill was not the “target” of the grand jury’s investigation. In fact, she was specifically told at the beginning of her testimony that there was “no expectation or intention” at that time of any charges against her “as a result” of the investigation.

But McGill’s testimony did not fit the district attorney’s office’s version of events: McGill testified that going down to the registrar’s office was her own idea, because she anticipated a lawsuit against the school district, and she wanted to know why some signatures were valid and some weren’t. She also said that Smollar had “asked to come along,” and said Smollar practically inserted himself into the trip, which made her feel uncomfortable. In fact, McGill testified to a certain amount of enmity which Smollar bore her, a point that Fleming’s secretary, McIntyre, had also made earlier. Basically, according to McGill, Smollar was angry that he didn’t get the job of being the school district’s “point person” in regard to the recall movement. Smollar had even “verbally attacked” McGill.

There was no dispute in the grand jury testimony that McGill and Smollar went down together to the registrar’s office, where names of signature-gatherers were copied down. As McGill recounted events, she would read out names from the petitions and Smollar wrote them down. According to McGill, they hadn’t been told to do that by Fleming; it was their own idea. While McGill said that she had informed Fleming about the trip and recall procedures, she “never gave” any “report about the names” to Fleming. Rather, she had assumed that Smollar was probably going to handle the matter with Fleming.

McGill’s last day of testimony was August 21, 2006. Within a month, a document, dated January 12, 2006, was found among Smollar’s “things.” (Smollar himself had left the school district about June 2006.) The document was a list of the signature-gatherers, with a cover sheet in the form of a short memo, ostensibly from McGill to Fleming, and no “cc” to Smollar, consisting of two sentences, basically saying, “per your request, here’s a list of signature-gatherers.”

McGill was never asked to return to the grand jury to explain the memo, or given the chance to allow it to refresh her memory of the events concerning the trip to the registrar’s office. However, in May 2007, nine months after McGill testified, McGill’s own secretary, Barbara Thacker, was called to testify before the same grand jury (still ostensibly investigating Fleming). We will describe Thacker’s questioning and testimony in extreme detail in part III. of this opinion, but for the moment here is a précis: Thacker could not recall that McGill ever gave her the memo to type up, but—after being asked substantively the same question over and over (and over and over) again by two separate deputy district attorneys each taking turns asking that same question—Thacker said that McGill had probably given her the memo to prepare.

As noted, initially McGill was not only not the target of the grand jury’s investigation, but she was specifically told there was no expectation of any charges against her from the proceeding, which was focused on Fleming. Even so, at the close of the investigation in May 2007, the two trial-level deputy district attorneys conducting the investigation not only asked for an indictment of Fleming, on three counts, but for an indictment of McGill, on two counts, as well.

One of those counts was intrinsic to the grand jury proceeding itself, that is, based on alleged perjury before the grand jury in conducting the investigation of Fleming. We should point out now that what exactly McGill was alleged to have falsely told the grand jury under oath is not spelled out in the indictment. All the indictment tells McGill is that she was alleged to have lied somehow, somewhere, in her grand jury testimony. Literally, the indictment said no more than that.

Indeed, to this day in 2011, the district attorney’s office has yet to actually quote the exact words which McGill uttered under oath and which the office claims she knew were false. Instead, the district attorney’s office has provided, in briefing to this court, a series of general statements in the district attorney’s office’s own words that paraphrase McGill’s testimony, followed by a string of general record references: “Petitioner further testified she did not know what happened to the list of names Smollar had written down. (RT: 191, 205-208.) She repeatedly claimed she never told Superintendent James Fleming about the list or wrote him any memos about it. (RT: 189-190, 195, 201, 202-203, 205-208, 212.)”

From this statement, we gather that the district attorney’s office has based its perjury count on the January 12, 2006 cover memo, ostensibly written by McGill, and its subsequent “authentication” by her erstwhile secretary, Thacker. The district attorney’s office’s theory appears to be that McGill falsely testified that she did not know what happened to the list of names written down at the registrar’s office, and did not give Fleming any memos about the trip when, in fact, the January 12, 2006 cover memo proves she did know full well what happened to the list, and in fact did write Fleming a memo about the list.

The other count in the indictment was extrinsic to McGill’s testimony, that is, did not depend on the face of McGill’s testimony before the grand jury, except insofar perhaps as the count was premised on a rejection of McGill’s testimony that going down to the registrar’s office was her own idea. This was a conspiracy count, which McGill shared with Fleming. The conspiracy allegation, as it was eventually fleshed out in briefing at the appellate level, was based on the theory that McGill and Fleming conspired to “ ‘use district resources to further their own personal purposes.’ ” (Fleming, supra, 191 Cal.App.4th at p. 100, fn. 24 [quoting district attorney’s office’s brief].) This court affirmed file trial court’s dismissal of the conspiracy count in Fleming, and that judgment is now final.

But what about the school district’s public relations officer Smollar, who by every version of the facts was at least as involved in the trip to the registrar’s office and the preparation of the list as McGill, and in whose own “things” the memo, ostensibly from McGill, had been found? Smollar was never called to testify before the grand jury.

But there was something more than just the fact that Smollar was never called: At the very end of the grand jury’s investigation in mid-May, one of the deputy district attorneys presenting the witnesses to the grand jury affirmatively instructed the grand jury that “anything” Smollar “might or might not say” was “irrelevant” to the “crimes” which the grand jury was being asked to consider, which included the perjury charge against McGill.

The indictment against superintendent Fleming (including necessarily the conspiracy count against both Fleming and McGill) was considered in Fleming, supra, 191 Cal.App.4th 73. There, this court held that, under the Education Code, the superintendent and his assistant McGill were within their lawful authority to compile the lists, disposing of the first two counts against Fleming. (See id. at pp. 84—89 [noting and then applying provisions of Ed. Code, §§ 35020, 35172, 35293 & 42130].) This court affirmed the trial court’s dismissal of the conspiracy count against Fleming and McGill (count 3), since there was insufficient evidence that Fleming and McGill had done “anything that even remotely” resembled obstruction of justice or the due administration of the laws. (Fleming, supra, 191 Cal.App.4th at p. 100.)

The dismissal of all the counts against Fleming and the conspiracy count against McGill leaves only the perjury count against McGill, which is the subject of this writ proceeding, brought by McGill after the trial court denied her motion to dismiss the indictment pursuant to section 995 of the Penal Code. After oral argument and no less than three rounds of supplemental briefing requested by this court, here are our conclusions:

(1) As explained in detail in part VI.A. of this opinion, a district attorney’s office cannot limit its duties in dealing with the grand jury to simply refraining from not disclosing evidence which it knows to be exculpatory. A district attorney’s office must also not, even if unintentionally, cause a grand jury to think that it would not be worth its while to call a given witness when that witness’s testimony is clearly relevant to the charges being considered. The district attorney’s office here may have acted with good intentions in not calling Smollar to testify and in telling the grand jury that anything he even “might” say was irrelevant, but those good intentions still had the unfortunate effect of interfering with the grand jury’s independence. And that independence is absolutely foundational to the grand jury’s role in criminal cases (as well as, we might add, the grand jury’s civil watchdog function).

The grand jury had the right to request a judge to issue a subpoena to have Smollar examined. (Pen. Code, § 939.2.) The grand jury had the duty to make its own credibility determination as to whether McGill really had knowingly lied before handing down its indictment, and Smollar’s testimony would have undoubtedly helped that credibility determination. (Berardi v. Superior Court (2007) 149 Cal.App.4th 476, 498 [57 Cal.Rptr.3d 170] (Berardi) [“The grand jury, like the magistrate, is called upon to make credibility resolutions and weigh the evidence when determining probable cause.”].)

(2) The grand jury’s own failure to recall McGill to “explain”—and that’s the key statutory word—the January 12, 2006 memo was, on the peculiar facts of this record, a violation of Penal Code section 939.7, resulting in substantial prejudice to McGill.* *** Under the terms of section 939.7, a grand jury has an affirmative duty to order the production of evidence within its reach when it has reason to believe that such evidence will “explain away” the charge. Here, the grand jury had ample reason to believe that calling McGill back to get her explanation about the memo would have explained away the charge, especially the knowing element of perjury. The January 12, 2006 cover sheet was a short one, and could easily have been forgotten. Or a reasonable education administrator could easily not have considered it worthy of the word “report.” Or it even might have been forged. It was the grand jury’s province, not the district attorney’s office’s, to weigh those possibilities before indicting McGill for perjury.

(3) During the course of this writ proceeding, McGill presented a request for judicial notice of an affidavit from an investigator employed by the district attorney’s office to obtain a search warrant of the school district’s offices. The affidavit recounted a conversation which the investigator had with Smollar involving events just after he and McGill had returned from the registrar’s office, and that affidavit makes it look like the district attorney’s office had concealed, in violation of section 939.71, certain statements from Smollar that were exculpatory of McGill (mostly showing that Smollar, rather than McGill, may have been the moving force behind the substance of the Jan. 12, 2006 memo).

But this court then gave the district attorney’s office the chance that it had never given McGill—the chance to explain what appeared, on its surface, to be a fairly damning document. As we explain below, we are satisfied that there was no misconduct on the part of the district attorney’s office connected to the memo.

However, the district attorney’s office did fail to realize the degree to which Smollar’s statements were indeed exculpatory of the perjury charge against McGill. The affidavit’s recounting of Smollar’s statements to the investigator suggested a scenario in which McGill was only perfunctorily involved with the January 12, 2006 memo (referred to by the district attorney’s office as the “Second Enemies List”), such that she easily could have forgotten about it, or not considered it her own “report” to Fleming. But we stress: Being wrong on a legal point is not prosecutorial misconduct, it’s just being wrong. We conclude there is no prosecutorial misconduct.

(4) California law affords all persons two alternative sets of protections to prevent defendants from being required to unnecessarily undergo the trauma and expense of a criminal trial. Those two alternative protections are either a preliminary hearing before a neutral magistrate, or an evaluation of the case by an independent grand jury. That is, criminal procedure in California is a two-step process; First, an evaluation (by way of preliminary hearing or grand jury), then the criminal trial.

However, in the unique situation where, like here, the grand jury directly indicts a nontarget witness in the course of its investigation of someone else, the effect is to short-circuit important protections that the grand jury procedure is designed to afford: Section 939.5 requires a neutral grand jury going in to an investigation, not a grand jury that may already have a “state of mind” in reference to a potential indictment. (See § 939.8.)

A grand jury that indicts a nontarget witness for perjury in the very same proceeding in which it is ostensibly investigating someone else, is like a judge in a regular trial who, thinking a witness has just lied on the stand, immediately requires that witness to stand trial for perjury without either a preliminary hearing or an independent grand jury investigation. Consider: If the deputy district attorneys who thought McGill had knowingly lied in denying making any “reports” to Fleming about the lists had proceeded by way of a complaint and then a preliminary hearing, then McGill would have had the opportunity, before being required to face a criminal trial, of taking the stand herself and saying what she had to say about the January 12, 2006 cover memo. That neutral magistrate would then have made his or her own determination as to whether McGill’s earlier testimony before the grand jury included a knowing falsehood.

Alternatively, if the deputy district attorneys who thought McGill lied to the grand jury investigating Fleming wanted to proceed by way of grand jury, they could have convened another grand jury (and the law makes express provision for such alternative grand juries, in § 904.6). That grand jury would not be personally entwined in McGill’s alleged offense, and its members would naturally be focused on whether McGill simply forgot about the short cover memo, or didn’t think it merited the word “report,” or whether she even prepared the “report.”

Moreover, by virtue of venerable California Supreme Court precedent {In re Tyler (1884) 64 Cal. 434 [1 P. 884] (Tyler)) in such a hypothetical second grand jury investigation, McGill would have had the right to bring exculpatory evidence to the attention of the grand jury (even if that grand jury would have been, at least theoretically, under no direct obligation to call her as a witness).

But in this case, where the grand jury that indicted McGill for perjury was itself the audience to whom the alleged perjury was directed, a direct indictment by that very same grand jury effectively deprived McGill of the protections that she otherwise would have received from a neutral, independent grand jury.

II. A PRIMER ON GRAND JURIES AND PRELIMINARY HEARINGS

Before we set out a detailed recount of exactly what it was that led to McGill’s perjury indictment, a review of grand jury procedure is necessary. The class that is called “Criminal Procedure” in most law schools isn’t really about procedure in the sense of examining the procedural steps involved in bringing a criminal case from alleged crime to trial, then acquittal or conviction and appeal. The typical criminal “procedure” course usually concentrates on substantive law, i.e., how the key provisions of the Bill of Rights relate to criminal justice. Actually, most attorneys never take a class in true criminal procedure, and so many lawyers, not to mention lay people, have only the vaguest idea what a “grand jury” is, or does. Indeed, even lawyers who work in the criminal law, and many judges, can go their entire careers without ever having to focus on the rules and dynamics of grand juries.

So here we go. As alluded to in part I., a district attorney’s office cannot just require a person to go to trial on an allegation of a felony in one direct step. There are two alternative procedures to bring a person to trial.

The more common procedure is the initial filing, by the district attorney, of a complaint. Then comes a preliminary hearing, and, if the defendant is held to answer after the preliminary hearing, a document known as an “information” is filed. (See Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2011) §§ 7.3, 7.4, p. 150 [“A written complaint, subscribed under oath, can be a preliminary pleading in a felony case . . . .” “The complaint in a felony case is followed by a preliminary hearing. The pleading filed by the people if the defendant is held to answer for a felony after a preliminary hearing is the information.”].)

The key stage in the complaint-preliminary hearing-information process is the preliminary hearing. Preliminary hearings provide a number of protections for persons accused of crimes: The accused has the right to be represented by counsel, the right to appear before a neutral magistrate, and the right to tell his or her side of the story. The accused also has the right to present his or her own evidence, and to call witnesses on behalf of the defense, plus cross-examine hostile witnesses. (Hawkins v. Superior Court (1978) 22 Cal.3d 584, 587 [150 Cal.Rptr. 435, 586 P.2d 916] (Hawkins).) The neutral magistrate is not required to believe the prosecution’s witnesses, but can decide credibility conflicts in favor of the accused. (Berardi, supra, 149 Cal.App.4th at p. 498.) By far the vast majority of felony criminal cases in California go by way of the complaint-preliminary hearing-information procedure. (See Hawkins, supra, 22 Cal.3d at pp. 605-606 (conc. opn. of Mosk, J.).)

The grand jury procedure operates differently. (Because this case involves a grand jury proceeding, we will go into more detail on grand juries than we will about complaints, preliminary hearings and informations.)

Generally speaking, there is one regular grand jury in each county, which serves for an entire year (§ 905), though, as noted above, there can be another grand jury at the same time (§ 904.6). In fact, as the California Grand Jurors’ Association itself has said, an additional “optional” grand jury “dedicated to hearing criminal matters” operates in almost half of California counties. (Cal. Grand Jurors’ Assn., Comments of the California Grand Jurors’ Association on Professors Vitiello and Kelso’s Tentative Recommendation Reform of California Grand Jury Statutes (2002) 35 Loyola L.A. L.Rev. 609, 623 (hereinafter, Grand Jurors’ Association Comments).) Grand juries are selected by the superior court (the trial-level court), and, depending on the population of the county, will consist of either 23 persons (in counties over four million), 19 persons (in counties between 20,000 and four million) or 11 persons (in counties under 20,000) in population. (§ 888.2.)

Important to understanding California’s grand jury system is to realize that each regular county grand jury has a dual role. One of those roles is commonly referred to as the “civil watchdog” role. One of the main reasons that California’s Constitution expressly provides for grand juries (see Cal. Const., art. I, § 23) was to preserve that watchdog role over allegations of local corruption. (See Vitiello & Kelso, Reform of California’s Grand Jury System (2002) 35 Loyola L.A. L.Rev. 513, 519 (hereinafter, “Vitiello-Kelso article”) [noting that in. Cal., the grand jury “was bom” out of a “pre-Civil War tradition” as a watchdog over local corruption].) It is in the civil watchdog role that one might, for example, read about a grand jury “report” on some aspect of local government. (Cf. Grand Jurors’ Assn. Coms., supra, 35 Loyola L.A. L.Rev. at p. 611 [noting that grand jurors’ association was itself “focused on the civil function of grand juries and professes no expertise with respect to the criminal indictment function”].) Provision for the civil watchdog function of grand juries is found in sections 925 through 933.6, providing for investigation of county, city and district governments. We stress that we do not address the civil watchdog role of grand juries in this opinion.

This case, rather, involves the second of the grand jury’s two roles: to investigate allegations of crime (the key phrase is “public offense” (see § 889)) to determine whether, after an investigation, an indictment should be filed against a person. An indictment does not require unanimity: a minimum of 14 grand jurors is required if the total is 23, a minimum of 12 in counties where the total is 19, and a minimum of eight in counties where the total is 11. (§ 940.)

Members of the grand jury may themselves initiate a criminal investigation leading to an indictment (§ 918), as, of course, may a district attorney’s office (§ 935). The investigation is held in secret. Indeed, it is a misdemeanor for a grand juror to willfully disclose evidence adduced before the grand jury (§ 924.1). There are reasons for this secrecy: Two of the original reasons for grand jury secrecy were to “reduce the influence of the monarch” and guarantee impartiality. (People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 414 [92 Cal.Rptr.2d 829] (Mouchaourab).) Today, of course, while we do not worry about the influence of the Crown, impartiality remains an important feature of the grand jury system—California law requires members of the grand jury to be absolutely neutral in regard to any criminal matters before them (§ 939.5). Secrecy is also justified today by the concern that persons who are investigated by the grand jury, but against whom no indictment is returned, should not have their reputations sullied. (Bowens v. Superior Court (1991) 1 Cal.4th 36, 43, fn. 3 [2 Cal.Rptr.2d 376, 820 P.2d 600] (Bowens).) Also, secrecy serves to deter the risk of flight. (Ibid.)

After the investigation, the grand jury must “find an indictment” if “all the evidence before it, taken together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction by a trial jury.” (§ 939.8.) On the other hand, the law also provides for a public exoneration if the grand jury does not return an indictment. Section 939.91 provides that if the grand jury investigates a “charge against a person,” and “cannot find an indictment,” the grand jury is required to issue a report (or a declaration) stating that a “charge against” the person was investigated and the grand jury “could not as a result of the evidence presented find an indictment.” (Of course, the person under investigation must request it, and the court must ultimately approve.)

If the grand jury does return an indictment, there will be no preliminary hearing. (Cal. Const., art. I, § 4.1, also known as “Proposition 115” adopted by initiative in 1990.) The case will head for a criminal trial of the accused, unless the court sets aside the indictment pursuant to a motion brought under section 995.

There are several aspects of the grand jury’s investigation leading to the indictment that are noteworthy. First, the grand jury procedure does not afford a number of protections otherwise afforded the accused in the complaint-preliminary hearing-information procedure. There is no right to be represented by counsel, no right to confront or cross-examine hostile witnesses, and no right to object to evidence introduced by the prosecutor. (Hawkins, supra, 22 Cal.3d at p. 587.)

However, as Justice Richardson asserted (in our opinion, for what it is worth, correctly) in his dissenting opinion in Hawkins, the California Constitution “vests” the Legislature with power over the grand jury procedure. (Hawkins, supra, 22 Cal.3d at p. 610 (dis. opn. of Richardson, J.).) And the Legislature has provided accused persons with its own set of protections in the course of grand jury criminal investigations. Justice Richardson pointed out, for example, that grand jury secrecy serves to protect the “accused’s reputation.” (Id. at p. 618 (dis. opn. of Richardson, J.).) Other protections Justice Richardson noted are: Every indicted defendant is entitled to a complete transcript of proceedings. All witnesses, regardless of whether they are targets, are protected against self-incrimination. Grand jurors are authorized “to order additional evidence” if “they have reason to believe it will explain away the charge . . . .” (Ibid. (dis. opn. of Richardson, J.).) And prosecutors must inform the grand jury of any evidence “ ‘reasonably tending to negate guilt.’ ” (Id. at p. 619 (dis. opn. of Richardson, J.), quoting Johnson v. Superior Court (1975) 15 Cal.3d 248, 255 [124 Cal.Rptr. 32, 539 P.2d 792] (Johnson))

Readers should bookmark those words: “reasonably tending to negate guilt.” They will become important in part VI.C. of this opinion where we address the merits of the district attorney’s arguments that Smollar’s statements to the investigator were not “exculpatory.”

We would also point out several protections built into California grand jury procedure in addition to the ones that Justice Richardson cataloged in Hawkins. An extremely important one is that grand jurors must be absolutely neutral. (§ 939.5.) If grand jurors have a “state of mind in reference to the case” they must “retire” from considering it. {Ibid.) Also, the Legislature has provided that the grand jury may, on its own, require the attendance of witnesses. (§§ 939.7, 939.2.) And a grand jury also has the power “at all times” to request that a judge be present in its proceedings. (§ 934, subd. (a).)

With this background, we now recount in detail what happened at the grand jury’s investigation of James Fleming that led to the indictment of Susan McGill for perjury.

HI. THE GRAND JURY PROCEEDINGS IN THIS CASE AS THEY RELATE TO McGDLL

Many readers will have never seen a transcript of a grand jury proceeding, and so the overall flavor of such proceedings may not be exactly clear to them. There was no judge. Two trial-level deputy prosecutors, operating tag-team style, took turns asking the witnesses various questions, often repeating substantively the same question many times.

We will first recount in detail the examination of McGill before the grand jury in August 2006. Next we will describe the January 12, 2006 document which forms the core of the perjury allegation against McGill. Then we will recount, in even more detail, the testimony of McGill’s secretary, Thacker, in May 2007. Finally, we will recount testimony from other witnesses to the grand jury concerning David Smollar.

We apologize for the length of part III. of this opinion, but, to be plain, a line-by-line recounting of the questioning of McGill’s secretary, Thacker, reveals a process that, upon reading it, actually seemed a bit shocking to a court that normally reviews transcripts of proceedings overseen by judges. Readers should remember that not only was there no judge who presided over the proceedings, but neither McGill nor Thacker had counsel (or reason to believe at the time they were questioned that they would need counsel). Our narrative is an attempt to recreate, as best we can, the apparent flavor of what took place as it happened before the grand jury. Readers who plow through this part of the opinion can judge for themselves whether or not “badgering” is too a strong word.

A. McGill’s Testimony

1. First Day’s Testimony

At the beginning of her testimony, the deputy district attorney conducting the proceedings assured McGill that there was no expectation she would be faced with criminal charges: “Also, I want to advise you that based on information that we now possess there is no expectation or intention at this time of seeking any charges against you personally as a result of this investigation. Do you understand that?”

Then McGill testified: Fleming had appointed her, being assistant superintendent, as “the point person from the District to communicate with Neal Kelley [(the Orange County Registrar of Voters)], when we were involved with the recall.” That is, while the recall signatures were being gathered, McGill called the registrar to ask him about “time lines” involved in the recall and ask him “when will we start to hear something.” At the time, all she knew was: “People were out there and they were trying to get signatures, but that was about it.”

McGill learned that the recall effort had failed sometime in December 2005, when Registrar Kelley called her to tell her that “they didn’t have enough valid signatures.” Later (in apparently another phone conversation with Kelley), Kelley mentioned “that some of the people who had collected signatures were coming in to look at the petitions and look at the validation process.” McGill “said gee, could I come up and do that?”

There was, by early December, some worry on the part of Fleming and his staff that the school district itself might have to pay for the “tallying” of the count of signatures, but in January McGill’s fears on that account were assuaged, apparently by Kelley himself. About the same time, McGill asked Kelley “if we could come and look at the validation process,” i.e., “how the petitions were validated.” McGill was “just interested in . . . why some of the signatures were not valid and some were.” Fleming said it “would be okay if [McGill] went,” indicating it would be a “good idea” to look at how signatures are validated.

One of the two deputy prosecutors then asked if she made the trip out of “pure curiosity.” McGill said; “We thought we were going to be sued, the District. They were going to be. And so we thought it might be good to know why—how tiie signatures were validated and what caused them to be not valid signatures.” In fact, Fleming and his staff (certainly including McGill herself) “had heard that we might be sued.”

So, McGill, along with the district’s public information officer, David Smollar, went to see Kelley about the “process” of validating signatures, which included comparing signatures on record with those turned in.

Smollar himself “asked to come along,” though the request caused a certain apprehension in McGill. McGill was “nervous because Mr. Smollar had been very upset” with her because Fleming had asked her to “do this job” (apparently referring to being a point person with the registrar’s office). In fact, back in September 2005 Smollar had “verbally attacked” McGill. In fact, McGill had hoped that a third person would accompany them on the trip, but that person was not available. She would also testify that David Smollar generally “didn’t talk to me,” apparently referring to public information requests related to the recall.

McGill explained their relationship: Fleming wanted McGill to do “some of the duties that David [Smollar] had been doing.” But Smollar “was not very happy about the changes and so he did not work with me,” and McGill “worked independently of him.” This meant more public relations duties, though nothing “specifically” about the recall.

Once at the registrar’s office, the tour also included viewing piles of petitions in stacks on long tables. McGill and Smollar asked to see the petitions: Kelley said yes, noting that “other people had come in from the recall” and had looked through them.

McGill then testified that Smollar wrote down some names of people who had “passed out the petitions.” McGill was “sure” that she and Smollar talked about people that they “recognized.”

The prosecutor was asked whether Superintendent Fleming had told her to write down a “list” of names. She said no, “he did not.”

At this point the deputy prosecutor asked McGill about the subject of motivation. One of her motivations, testified McGill, “was just seeing the process.” And another motivation, said McGill, was “possibly” to prepare for a lawsuit, though that was not McGill’s “intent” when she went. “I was just going to see the process.”

She told Fleming about the visit when she got back, though she did not tell him that Smollar “had got a list of the recall petitioners.” Rather, she figured that Smollar himself “was probably going to handle that with Dr. Fleming.”

It was not until months later, when a newspaper story surfaced about an “enemies list,” that McGill made any connection with the names Smollar had written down. The morning of the story, Fleming called McGill and the rest of his staff (“everybody” was her word), and said “this is the list that they were referring to.” But it “wasn’t a list that” McGill “had ever seen.” Even so, she assumed that the matter was “something that David [Smollar] handled and that he might have had a conversation” with Fleming about it, but she was “not involved.” After all, Smollar also had a “working relationship” with Fleming. And she “didn’t even know what David [Smollar] did with the list.”

2. Second Day’s Testimony

When McGill returned to the grand jury on August 21, 2006, a new deputy prosecutor began as her inquisitor. Despite previous testimony that it was her own idea to make the visit to the registrar, on the second day the new deputy asked McGill to say that the trip to the registrar’s office was Fleming’s idea, not hers: “You were instructed by Dr. Fleming to go to the Registrar of Voters to learn about why the recall failed, correct?” McGill replied that Fleming said “we could go,” though he hadn’t said “go there.”

McGill was asked if she ever “did brief Dr. Fleming on the procedures for the recall.” The “briefing” didn’t take long though; it was over “very quickly.”

This new prosecutor soon returned to the subject of the list: “And when you and David [Smollar] then decided, hey, pot of gold. I got a roomful of names. Let’s find out what names, correct?” To this McGill answered, “correct,” and then agreed with the prosecutor’s next statement that Smollar “started writing those names down.” McGill said she also “started looking through those petitions.”

The prosecutor then built on the “enemies list” theory of the case: “The reason you were looking through those petitions was to see which person actually circulated that petition, were you not?”

McGill corrected him: “The reason we started to look through the petitions was to look at if we could see why the signatures were invalid.”

McGill stuck to her story that they spent maybe a half an hour to 45 minutes in the office, as distinct from a longer period of time (which is what the prosecutor obviously wanted to hear). For her part, McGill could not “remember” writing down any names, though she did tell Smollar some of the names. She referred to herself and Smollar as “we,” which may explain why she answered “That’s my understand [sic]” to the prosecutor’s question of: “You only wrote down the circulators names?” That is, McGill told Smollar some of the circulator’s names in addition to those he wrote down himself. McGill, however, answered “I don’t know” to a question of why they seemed to “place some importance on the fact that [they] needed to identify the circulators; why?”

At this point the prosecutor returned to his theme that McGill had really been put up to the task by Fleming all along: “Did you just make this up? Were you directed to do it?” When she answered “no,” he asked, “This was all of your own free will?” McGill said, “yes.”

Then again, the prosecutor continued on the theory of a scheme originated by Fleming: “And it was your plan?” McGill countered, “It wasn’t any plan. It was just we were there, we were looking through, and these are the people who had circulated the petitions.”

The examination next turned to events after returning from the registrar: “Then you never gave any report about the names you saw in there to Dr. Fleming, correct?” McGill answered “That’s correct.” She reiterated her testimony that she simply had told him about recall procedures.

The prosecutor then introduced the theme of waste of money: “And so you spent an hour of school time just passing your time writing up these names for no apparent reason?” McGill’s answer: “I guess. David Smollar was the one who was handling the name part,” though they were, she “admitted,” working “together as a team” while looking at the petitions. The decision to write down the names was a “spur of the moment” decision, though McGill answered “I don’t know” as to why the task was “important.”

McGill soon said that she didn’t know “what happened” to the list of names Smollar had written down.

The prosecutor then tried (yet again) to link Fleming with the list; “All you know is later you saw Dr. Fleming with that list?” To that, McGill answered “no.” The prosecutor returned to the same question: “You never saw Dr. Fleming with that list?” Answer: “No.”

The prosecutor then asked: “What happened to the list?” McGill answered: “I don’t know.”

“Did you ever ask?” McGill said “no.”

Soon the prosecutor returned to the aftermath of the visit. Had McGill ever “put anything in writing” about her “efforts with respect to the recall?” She said “no.”

Then he got more direct: “You never wrote any memo to circulate about the strong public relations efforts we’re going to make with respect to the recall?” McGill answered: “not with respect to the recall.”

And soon again: “Did you ever prepare anything on the computer or in writing concerning being the point person of the recall?” McGill: “Not that I remember. We did it verbally.”

And again: “So did you prepare memos for the school superintendent? You had other wide range of duties as the assistant superintendent. [Szc.] Was all of your information [sic] passed on to the superintendent just through personal meetings?” McGill: “Correct.”

Soon, the prosecutor from the first day started asking questions: Upon her return to the school district’s office, the prosecutor asked, had she told Fleming that she “recognized any names at the registrar’s office?” She didn’t remember.

Did Fleming ask her “whose names were on the petitions?” She didn’t remember.

Did McGill tell Fleming that Smollar “had written down some names while [they] were there?” McGill: “No.”

Finally, questions turned to events beyond the day of the visit to the registrar’s office. In the last week of June 2006, McGill overheard Fleming say something to a reporter about a “hit list.” The next morning Fleming “called us in and he showed us some list that the newspaper reporter had sent to Dr. Fleming.” And at that time, she spoke up and told Fleming that Smollar “took down some names when we went up to the registrar’s office, and so I thought maybe that could be” (presumably she meant the list mentioned). McGill continued, “But the list that I was shown was not the list that I thought David [Smollar] had—the names he had written down.” For McGill, “it didn’t look like the same list.” It wasn’t, for example, a “handwritten list.” (We may pause to note here that, as explained more thoroughly in Fleming, there were two so-called enemies lists, one compiled in spring 2005. The so-called “first enemies list” is not at issue in this proceeding.)

When Fleming showed McGill the list afterwards, he asked if McGill had ever seen it, and she said no. She mentioned that while Smollar had written down some names at the registrar’s office, the names on the list she was shown “didn’t look like they were the same.” Fleming himself never “followed up” with any questions about Smollar’s writing down names.

This was the “first time” McGill told anyone that Smollar had written down names.

When asked about the subsequent media “furor” about the enemies lists, McGill responded that there was confusion at the office because “people didn’t know what list the media were referring to.”

B. The January 12, 2006 Memo

About a month after McGill’s testimony, the district attorney’s office came into possession of a short cover memo, ostensibly from McGill to Fleming. There is no dispute that the memo was discovered in Smollar’s “things.” (Where, precisely, those “things” were found is not clear in this record.)

We have already quoted the cover memo in full (see fn. 1, ante), but a few more details are now appropriate. The document may be divided into three distinct parts. Part 1 was the one-page cover memo from McGill to Fleming dated January 12, 2006. Part 2 can be described as two “simple” lists of names, with initials after each name that appear to be names of cities in the school district. (E.g., “John Smith DP” with “DP” presumably standing for Dana Point.) The two lists had headings. The first list said the following names were petition gatherers who accounted for as many as 90 percent of the petitions submitted to the registrar, and the second list were petition gatherers on “fewer” petitions. Part 3 was a computer-generated spreadsheet giving the same names, but with addresses, names of children in the school district, schools attended and phone numbers. (The sets of spreadsheets followed each of the two “simple” lists, but, for reasons that will become clear in pt. VI.C., it makes more sense to treat the spreadsheets as a separate, third part of the document.)

At the bottom of each spreadsheet is this code, in very small print: “C:\Documents and SettingsYBTHACKERAMy Documents\McGill\Parent Lookups2 1-ll.doc.” Underneath that line were the printed initials, “bt.”

McGill was never called back to explain if she knew why her name might be on the cover memo, or how it might be reconciled with her testimony that she had not given any “report about the names” to Fleming.

C. Thacker’s Testimony

The grand jury investigation continued on into the next year. In May 2007—in transcript terms about four volumes after McGill’s testimony— Barbara Thacker, a school district secretary, was called to testify. She said that Fleming had assigned Thacker to be McGill’s secretary in August 2005. She worked for McGill until McGill’s retirement in June 2006.

Typically, when McGill wrote letters in her job, she would give Thacker information and Thacker would “word process it.” In fact, McGill would often give Thacker “things to type up or to input into [her] computer.”

Fleming had never talked to Thacker about McGill working with the registrar’s office, and McGill herself had “not really” talked about “the type of work she was doing with the registrar,” though McGill did tell Thacker “she was going to the registrar,” a point Thacker didn’t consider any “big deal.” (And of course McGill said things like, “If Neal Kelley calls, get me.”)

Thacker recalled a trip to the registrar’s office that McGill made with David Smollar in January 2006, though she didn’t remember whether it was in January “exactly.” This was, Thacker believed, after the registrar had ruled the recall had failed. Thacker did observe, though, that the trip seemed “spur of the moment.”

McGill came back to the office “maybe” a “couple hours” later. She also saw David Smollar that day. He “seemed all excited,” even though McGill was acting “just normal.”

The prosecutor soon asked a question related to the January 12 memo: “After that, her second visit [(the one with Smollar)], did she ask you to help her with some documents from the registrar’s office?”

Thacker’s answer was not exactly paydirt: “Not that I recall. But it’s possible.” In fact, Thacker didn’t “recall anything specifically from the registrar’s office.”

More directly, the prosecutor asked: “And do you recall working on a specific set of documents and set of names and a memorandum regarding her second visit to the registrar’s office?”

Again, the answer was not paydirt: “You know, I really don’t.”

But then Thacker added: “But I have been shown that I did do something, because my initials are on it, so therefore, that leads me to believe that I did sign something that you might be referring to.”

We should pause here to note that the spreadsheets mentioned above in our description of the January 12 memo have a “bt” in tiny print down at the very bottom. However, the first memory that Thacker had of the document was when Fleming showed it to her the previous August (of 2006).

Then the prosecutor showed Thacker the January 12, 2006 memo. Thacker immediately exclaimed that she did not type the “top page,” apparently referring to the cover memo ostensibly from McGill to Fleming.

She was then asked this question:.“Who typed it?” Thacker’s exact words: “I don’t know, but probably Susan typed it. She did a lot of her own typing.” Thacker then noted that “Susan McGill would create her own face sheet for a memo,” and “did a lot of her own typing.”

The prosecutor then asked about the squiggle. “So the initials that are next to her name, were those—do those look like her initials?” Thacker: “Yes.”

Thacker went through the document. She said she did not type the list of names on the second page, and didn’t know who did.

Thacker did acknowledge, though, that she created the spreadsheets, and saved them to her own “C” drive in her computer.

Why had she created the spreadsheets? Thacker replied: “Well, I was probably given a list of names and asked to find out their information and make a database. It’s not unusual.”

And who had asked her to create the spreadsheets? Thacker’s exact words were: “Probably Susan McGill.”

But, did Thacker actually “recall her asking” to prepare the spreadsheets? Thacker was again equivocal: “Not specifically, no, but she was my boss. She would be the one to give me direction.”

Thacker went on to acknowledge making two separate spreadsheets. But what about the simple list on page 2? Did she create the spreadsheet from that? The answer was again equivocal: “I guess I did.”

“You guess you did, or you did?” asked the prosecutor. Thacker continued: “Yes, I did, I guess. I did. I did.”

Thacker explained in the same answer: “You see, I saw the list once. I just saw this once. I really didn’t examine it until today. Dr. Fleming asked me if I typed it. I said my initials are there, so I’m assuming I did. But I probably—I was probably given this information on this piece of paper and asked to look up their addresses and create a spreadsheet. But I didn’t analyze why or anything like that.”

The prosecutor zeroed in on McGill: “I’m talking about your original assignment from Susan McGill. Did use [sic] Susan McGill hand you the list on page 2 for the 90 percent petition gatherers and also the list on page 5 with the less than ten or fewer petition gatherers, and you were asked to make a spreadsheet from it?” Thacker replied: “I’m going to say yes.”

Asked what McGill told her “as far as why” when given the assignment, Thacker replied, “Well, she didn’t give me any reason why.”

The prosecutor asked the question again: “What were her directions to you? What exactly did she want?” Thacker said, “I don’t remember why, what she said. She probably asked me—I don’t remember the specific directions.”

After explaining how the district’s “Aeries” computer program could correlate lists of names with school attendance boundaries and children in school, Thacker was asked if McGill herself had Aeries. Thacker didn’t know.

Then again, if McGill had given Thacker a list of names, the program would have generated a spreadsheet that would come out just like the ones attached to the January 12 memo.

After some more explanation as to the nature of the computer program, the prosecutor was now ready to assume that McGill had given Thacker the list: “And when Ms. McGill gave you the list, though, do you recall her giving you this list on page 2 and going off of that list?”

Thacker, however, returned to the uncertainty that McGill had given her the list in the first place: “Not specifically. I don’t remember her giving me that list. But I believe she probably did.”

“She probably did give you this list?” the prosecutor asked. Answer: “Yes.”

So the prosecutor continued, confident his assumption had been vindicated: “And what did she tell you to do?”

This time Thacker was not unequivocal: “Type it up. I think she wanted these people’s names and addresses.”

But the certainty was short-lived—when the prosecutor asked almost the same question again, “What did she tell you?,” Thacker’s response again returned to the equivocal: “I don’t recall specifically what she told me.”

The prosecutor tried asking the question a third time, but with the tack of general instructions: “Generally what did she tell you? What were her instmctions to you?”

Thacker yet again was uncertain: “I don’t know really what her instructions were.” Then she added, “But I—I believe that it would probably be I want a list of all these people and their addresses and phone numbers. Something like that.”

And a fourth time: “Do you remember her doing that?” Thacker was at least unequivocal that she didn’t remember: “No.”

And a fifth: “You have no recollection whatsoever of that assignment?” Thacker’s answer was again in the negative: “Not really, no.”

But then came this question: “And when you were given this assignment, you noticed that this had to do with all of the petition gatherers for the recall, right?” To which Thacker’s answer was “yes.”

The prosecutor seemed puzzled that such an important document involving recall supporters should not have “caught” Thacker’s “attention.” After all, it was “not just another type up a memo assignment.” But Thacker said she was “so busy” she “just typed up the list.” And, accordingly, Thacker never wondered “what Ms. McGill needed the spreadsheet for.”

Thacker was asked what she did with the spreadsheet after finishing it. Again the word “probably” figured prominently in her answer: “I probably gave it to her.”

And a sentence later, used the word “probably” again: “I probably printed it out and gave it to her.”

The possibility that Smollar had authorized the list came up briefly in Thacker’s description of some searches of her computer after the lists had become public. Another secretary told Thacker that “She found a list in David Smollar’s things that I typed and she showed it to [Jeff, a school district compliance officer who came to her computer], I guess Jeff showed it to Dr. Fleming. And so then that was when Dr. Fleming called me and said did you type this. I said I don’t recall, but my initials are on it, so I must have.”

And then the prosecutor returned to his puzzlement that Thacker had no recollection of getting the assignment. It was an “unusual” assignment, so “certainly you would have remembered doing it, correct?”

Thacker stood her ground on the point: “You know, I am a smart person, and you would think I would remember doing things like this, but I do so many different things, nothing surprised me. I just would do anything.”

The prosecutor got really direct: “Are you trying to protect Ms. McGill?”

Thacker replied, “I’m not trying to protect anybody. I just don’t remember specifically being asked to do this, but I’m assuming that because she was my boss, she did. She gave me many, many, many assignments. You kind of go through the day, you don’t really think about it, to be honest.”

Soon the prosecutor asserted the theme that Fleming had told McGill to compile the list: “Well, just from reading Ms. McGill’s own typing, it looks pretty clear that he [(Fleming)] told her to go and find out who the petition gatherers were, correct?”

Thacker didn’t know anything about that: “Well, I can’t speak for what he told her to do.”

And the prosecutor then presented this assertion: “But it’s pretty clear, isn’t it, that the intention of Dr. Fleming and Ms. McGill is to find out who those people were, where they lived, who their kids were, and what schools they went to?”

Thacker could only speculate: “It may have been more who, they wanted to know who the people were. I don’t know that he wanted to know anything about the kids.”

And the same question was asked yet again: “But you don’t remember any direction or any instruction that Ms. McGill gave you?”

“Not specifically,” Thacker answered.

And again: “I’m just trying to figure out that if you’re clearly—you clearly think that the investigation and a lot of the aspects of it are wrong [(apparently referring to the lists and not the grand jury investigation)], yet you are unwilling to give any details about why you created this document for Ms. McGill. So—”

“Well,” Thacker answered, “I created it because she asked me to. I’m [sic] mean, I’m just a secretary typing.”

And the same question yet once more: “She didn’t give you any reasons why?” This time Thacker said, “Huh-uh.”

When asked more generally if she and McGill ever talked “about the recall at all,” Thacker said that “We all talked in general terms about the recall, like how is it going, and is it going to pass.”

The prosecutor was, if nothing else, persistent. He soon asked yet another variation of the same question: “The list that you were given by Susan McGill in order to make the spreadsheets, were they the list [sic] gathered from her first visit or her second visit?” Thacker said: “That I do not remember. I don’t remember.”

The prosecutor then showed the typed up list on page 2 (one of the pages of what we have called “part 2” of the Jan. 12, 2006 memo). Did it, he asked, “appear to be typed by Susan McGill”? Thacker said, “I don’t know who typed that. It doesn’t really look like anybody’s style that I recognize. Let’s put it that way.”

The prosecutor showed Thacker a copy of page 2 of the memo, and told her: “Keeping in mind this is a copy which was faxed, so it may not have all the pertinent information, when you had the list and you made the spreadsheet from it, do you recall working off of an e-mail computer screen or document on a computer screen or a piece of paper?” Thacker answered “Piece of paper probably.”

The prosecutor then asked the same question again: “Susan McGill gave you the piece of paper?” And this time got the answer he wanted: “I’m thinking yes, she did.”

The subject now turned to Smollar: “You never got an assignment—you didn’t get this assignment from David Smollar in any way, did you?”

“David Smollar did not really give me anything to do,” said Thacker. “I didn’t work for him.”

“He didn’t give you this assignment?”

“I don’t believe he did.”

“He didn’t give you the list of names to work off?”

“I don’t believe he did.”

After some questions about how the spreadsheets were put together, the prosecutor returned to his theme that McGill had given the assignment to Thacker: “And then the subheading is from McGill because that’s who gave you the assignment.”

Thacker said: “I put that, it means McGill is the place where I filed it on my computer. In her folder. So that would probably mean that she gave it to me to do.”

The second prosecutor (the “bad cop”—this one tended to ask the more argumentative questions) then took over.

After a series of questions about the Aeries computer program, the prosecutor turned again to the list, and an attempt to establish that McGill had given it to her.

“Is it your testimony here today that you provided all this information because it was at Ms. McGill’s request?”

And once again Thacker had no distinct memory of McGill giving her the list: “I believe that it must have been at her request, since she was my boss. I didn’t really take direction from anybody else. But I don’t specifically remember her giving me this list.”

The subject turned then to a conversation Fleming had with Thacker about the lists in August 2006. Fleming had the list “in his hand” when Thacker walked into his office.

Fleming handed Thacker the list, along with the cover memo, to review. Fleming asked if she had typed it. Thacker noted her initials at the bottom. Thacker had “heard there was a hit list,” but she had thought the idea “ridiculous.”

Fleming asked Thacker if she “typed this list.” She said, “I don’t recall, but I must have, because my initials are on it.”

Fleming asked, “Did Susan give you this to type or did David?” Thacker said, “It must have been Susan, because David doesn’t give me anything to do.” And Thacker left.

The testimony soon turned to Thacker’s computer. The school district compliance officer came to check her computer, got a pen drive, and made a “copy of something.” Thacker was not there at the time.

Thacker would later talk to the secretary of the compliance officer who checked her computer. Among other things, the secretary said that “she found some papers in David Smollar’s file and gave it to Jeff [(the compliance officer)], and that she had seen my initials.”

The inquiry then took a turn toward Thacker’s role in the wake of her meeting with Fleming. She tried to find “the document” (presumably meaning the list she made using the Aeries system), but she “really couldn’t find anything related to—”

“When,” the prosecutor interjected.

“So I gave it up,” Thacker finished.

The prosecutor then asked if she did all four pages at the same time. Thacker didn’t remember. “It wasn’t,” she said, “like a big project.”

The prosecutor asked if she might have deleted it once completed. “Absolutely not.”

In the context of who, exactly, Thacker had spoken with about the case, the prosecutor’s comment that “it is a list, is it not?” elicited this response, perhaps not entirely on topic: “It is a list, but to me it wasn’t a bad thing, because in my mind I didn’t think it was a bad thing when I—I would never do something that I thought was illegal, immoral, whatever. Yes, it’s a list. I typed many lists. I type lists all day long.”

At that point Thacker acknowledged that the list had indeed been discovered “on my computer