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Transcript shows Grand Jury dispute

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From page A10 | March 29, 2013 |

Editor’s note: The following is reporter Jody Ezzell’s transcript of proceedings from July 12, 2012, in which grand jurors Ryan Donner and Ray van Asten attempt to settle a dispute in front of Judge Steven C. Bailey in Department 2 Superior Court.

THE CLERK: In the matter of the case of P12SP0002, Matter of Ryan Donner.

THE COURT: Okay. Let me tell you first today, both of you, what we’re going to do and what we’re not going to do.

What we’re not going to do is a formal evidentiary hearing simply because I don’t believe that notice has been adequate to Mr. Donner such that I would expect you to be prepared to go forward today.

However, I’m also not going to give a significant amount of time. I’m not suggesting we’re going to do it tomorrow, but it could be as early as next week when we do a hearing in this.

The court has a significant amount of leeway in keeping or removing jurors. The Code of Civil Procedure outlines that if “… a juror becomes sick or, upon other good cause shown to the court, is found to be unable to perform his or her duty, the court may order the juror to be discharged, in which case — and I’m paraphrasing 233 now of the Code of Civil Procedure — the court would then proceed to select an alternate to take the discharged juror’s place.

What I want to do with today’s proceeding is kind of address the parameters of what the court sees happening. And so that the record clearly reflects, there were a series of e-mails that were sent around over the first week of July. Those e-mails came into my possession either by being forwarded by the foreperson and/or I think I received a direct communication from you, Mr. Donner.

And, quite frankly, I’m using the formal today because of the formal nature of the proceeding. I might in other instances refer to both of you by first names as opposed to being so formal. So I don’t want to create undue resistance because of the formality, but I want to make sure that we can really get down to the bottom of what’s going on.

The nature of having this reported is if we have to go into formal proceeding, evidentiary proceeding, we’re going to have everything that’s being said in this court taken down.

Now, let me kind of give some parameters and maybe an expansion of the charge that I gave two weeks ago. The 2011-2012 grand jury ended June 30th, no longer to exist in any way, shape, or form. There is now a 2012-2013 grand Jury. The court has absolute discretion to appoint the foreperson, and the court has appointed Ray van Asten as the foreperson for the new grand jury.

How the grand jury operated in 2011-12 is really of no import to the court any longer, and it now operates under the new charge as a new and distinct grand jury. Therefore, anything that occurred in the previous term happened in the previous term and no longer has any import whatsoever to how the grand jury will conduct its business in the new term.

Having said that, that means that if there’s an issue over video conferencing, the new foreperson has the absolute authority vested by this court to know about it, to find out and to see every last document, including e-mails, between any member of the community and/or the Board of Supervisors or any other agency that may have been working on that, and it is my expectation that the foreperson is going to be afforded that opportunity.

That means that for anything to proceed in the 2012-13 calendar year, it needs to proceed as if it were a brand-new activity. Administrative functions are the authority of the foreperson. So if this is an investigation or a proceeding that requires some sort of committee, it might require the necessary and requisite vote from the grand jury.

But if it’s simply an administrative matter, then it needs to go to the foreperson. And any communication to any third party, including the Board of Supervisors and/or the court, needs to go through the foreperson.

Now, it appeared to me that there was some issue with, Mr. Donner, you not being certain that the foreperson had the authority to request the documents and/or whether he had a right to be able to see documents. That may have resolved itself up through today, but I’m not certain that it has, which is why this hearing was convened.

Do you want to tell me what’s going on so that — and whether you have any question about whether Ray van Asten has authority to see the documents?

MR. DONNER: I think you’ve explained clearly that he does have the authority. And, as of today, we’ve gone over the — several of the documents multiple times, so there shouldn’t be any issues. We’ve also got his opinion from what county counsel has said, so there’s no question.

THE COURT: Okay. Ray — Mr. Van Asten.

MR. VAN ASTEN: I did receive documentation from Mr. Donner last Tuesday, Your Honor, which was discussed in the grand jury meeting this morning. Mr. Donner did give me the information — about, I believe, seven or eight pages of the application for the funds, the grant, and the backed-up materials.

To the best of my knowledge, Mr. Donner has not said anything beyond that. That is all the information that is available. It may not be. It may be we simply have not communicated on that level.

THE COURT: Okay.

MR. VAN ASTEN: My concern is a little further than that, Your Honor. Unfortunately — and I say “unfortunately” — Mr. Donner forwarded the e-mails to other jury members, and they have become aware of the, quote, unquote, controversy, and it has not stimulated openness, I think, or a good atmosphere in the grand jury room. As a matter of fact, it had become somewhat divided.

I did tell the jury that I had spoken to county counsel about this particular thing and that I had received information from county counsel that I, as foreperson, had the absolute right to get anything and everything. Even this morning this was challenged by Mr. Donner and — in the jury meeting, and it was discussed again in the jury meeting.

So I do believe that your warning a few minutes ago or your statement, I should say, probably clears that up hopefully forever, but I still have other jury members that need to either hear this or get a document to that effect.

So the other concern that I have, Your Honor, is that Mr. Donner, unfortunately — and I say again “unfortunately” — accused me of if I may quote from his e-mail. Let me find it, if I can. Here it is.

Mr. Donner, in his e-mail, accused me that my leadership creates an atmosphere of fear, intimidation, and bullying that he simply refuses to let pass. And, Your Honor, that is also the e-mail that you received. And I unfortunately feel that undermines my authority somewhat within the grand jury because other grand jurors, of course, have access to this.

He also ignored my request not to involve the other jurors because of the problems that that creates, and he ignored my request on that.

So in summation, Your Honor, I feel that Mr. Donner has not cooperated today, as a matter of fact, and I’m not sure where this is going to lead to, but it certainly makes my job much more difficult to run the grand jury, so to speak, and do the things that we need to do as a grand jury.

THE COURT: Okay. That raises kind of an unfortunate problem, Mr. Donner. Let me ask you point-blank. I mean, are you capable this year you know, I’m well aware that you had wanted to be the foreperson. I interviewed you. I thought we had discussed some of these matters, maybe not as explicitly as we’re doing today, but I was under the impression that you were well aware that a number of people had applied for foreperson, that it was at least likely that the court would select one of any number of other people.

You know, you came, frankly, highly recommended as a person who was diligent, had worked hard on the previous grand jury. I had no qualms whatsoever about reappointing you to this new grand jury.

Quite frankly, I’m not going to put up with the drama that I saw from the grand jury last year. Whether you and other members like the drama or not, I’m not going to have a year of that. I’m not going to subject other members of the grand jury to a split jury that is, you know, hiding among itself and conspiring among itself.

I still think that you are a hard-working individual who would be well qualified as a juror. However, if I thought — if I had a trial jury going and I had a member attempting to either undermine or, quite frankly, split the jury on nonsubstantive issues, I would remove that juror forthwith.

And it may be that this isn’t a year that you really ought to be serving. Maybe it would be better to apply and come back in another year. I’m not suggesting that as an alternative, but I just — it’s pretty apparent that the ability to work closely with Mr. van Asten may not exist.

And in that it has been the court’s practice in the past to rely upon the foreperson, if you can’t work with him and I’m going to have to come down here and have a hearing on a regular basis, I’m not going to put up with that.

So, tell me, is this something can you work with Mr. van Asten or is this a situation where we ought to have a — put you on a future grand jury? I’m not suggesting that you’re not qualified to be on the grand jury.

MR. DONNER: First, I’d like to say that I don’t believe that my comments in this e-mail about Ray being a foreman that creates intimidation and animosity among other jurors is a bad thing.

There are oftentimes in — in business where the employer is someone who creates this kind of situation, and I was letting him know that I was not going to put up with being intimidated and being asked to leave the jury because I’m working on projects that he may not like.

I don’t appreciate that. And so, therefore, I think that I have — I have forwarded these e-mails because I wanted the other jurors to realize the scope of what was going on.

What was it? There’s other jurors that feel the same way as me, so it is not just that I am creating any sort of problem solely for Mr. van Asten.

The other — you stated that there were several things that I was doing wrong, and I feel that I have fixed all of those issues. The first issue was the signature block, which I happily removed upon his request. Several other things he asked me to do, which I did.

And then at anytime that I raised a question, he felt that I was out of line in doing so. I was simply following parliamentary procedure, which is allowed and we had adopted in the grand jury room, and so therefore I have caused no problems there.

I realize that the video-conferencing system is something that this new grand jury has to deal with. Like I said, we’ve talked to county counsel, and we intend to move forward with this with support of the majority of the jurors, I would assume.

I believe that it’s possible that Ray and I can work together, but, again, I don’t appreciate that I’m being the one called into question here when it appears that he’s intimidating me, and that’s not okay with me.

THE COURT: Okay. Let me reiterate the chain of command as I view it. You are a function of the court. Your deliberative aspects are reviewed by the court within certain parameters.

Your ability to work together, however, is a direct responsibility of the court. So if you believe that you can work together — and it’s not “I might be able to work together.” It really is “I can work with Mr. van Asten.” And that is if he suggests to you that there is a particular direction that ought to be that you ought to proceed within the administrative confines of the grand jury, I don’t — he can certainly bring it to me, but it needs to come to me through the jury.

I don’t expect that there’s going to be — that it’s going to be a series of e-mails to members of the grand jury but more of a discussion within the Grand Jury. But if I continue to hear that there’s — and I’ll use the term “drama” occurring, you know, I think at this point you need to make it your goal to work with Mr. van Asten. Otherwise, I’ll have to set it for hearing, and then we’ll have a full-blown evidentiary hearing, and we’ll get to the bottom of this.

In the meantime, Mr. van Asten, if you believe that the Court needs to give additional direction to the jury, then what I’m go1ng to direct you to do is to contact Ms. Thurman. Ask that a formal grand jury proceeding be set up. We’re going to do it here in the courthouse. I’m not going to come to the grand jury room for this proceeding. I will give additional instructions to the entire jury.

And do I — I’m going to turn to you, Mr. Donner. Do you believe that I need to hold an evidentiary hearing at this point? Do you feel that you need to be vindicated in some manner, or is this something that you will go back and work on to be a cooperative and — a cooperative member of the grand jury?

MR. DONNER: I don’t quite understand, quite frankly, why I am the one that has to defend myself here. There’s issues between Ray and I, obviously, but those issues were not solely created by myself.

THE COURT: Okay. The question is can you bridge those issues and resolve them with Mr. van Asten, or do I need to have a hearing to resolve the issue one way or the other?

MR. DONNER: I believe that, like today, where we worked very well together, that it’s quite possible that we can have a well-working grand jury and that the two of us can work just fine together.

THE COURT: I’m not looking for possibilities. I’m looking for something that affirmatively tells me that it’s going to happen. And if it isn’t going to happen, then I’ll have a formal hearing. All of this — all of the matters as to everybody can come out.

MR. DONNER: Okay. Can I ask a question?

THE COURT: Yes.

MR. DONNER: So if there is a problem again, then what happens?

THE COURT: Well, then you’re going to need to request the court for a hearing or I’m certain that the foreperson is going to request the court for another hearing in this matter.

MR. DONNER: Then, in that case, we can work well together and yes.

THE COURT: Okay. Then that — at this point I’m not going to set it for any further proceedings. I have the expectation that you will sit down with Mr. van Asten and you will resolve your differences through the meetings.

And that if there’s a need for further proceeding, I’ll instruct you, Mr. van Asten, that if Mr. Donner wishes a court proceeding, that you are instructed to contact the court forthwith, and I will set it for a formal evidentiary hearing on whatever the particular issue is.

MR. VAN ASTEN: Will do, Your Honor.

THE COURT: Okay? In the meantime, is it your belief we need to have a formal proceeding with the grand jury?

MR . VAN ASTEN: I don’t believe so at this time, Your Honor.

THE COURT: Okay. Then I will not set it for a formal proceeding, and that will — that will resolve it for today.

I want to make it clear there was no hearing here. I mean, there’s no evidentiary hearing at this time. I didn’t get your full side of the story, so I’m reserving any type of decision as to whether you’re right, he’s right. You know, that’s for another day, if it needs to happen.

In the meantime, I want you to bridge and I want — and I know, because I’ve worked with Mr. van Asten on several occasions in the past when he’s been on the Grand Jury. I want the two of you guys to resolve these among yourselves. To the extent it doesn’t require bringing other jurors into it, that would be my preference.

But it is a grand jury. And if it needs to be discussed in the open jury room, I’m certainly not instructing anyone not to discuss it. But my preference is, and I think for the good of the jury, you should be — you and Mr. Van Asten ought to work these problems out.

But keep in mind that the foreperson of this jury and the one that is going to communicate with me is Ray van Asten. Okay?

That will be the — that will be all we’re going to do today. I do appreciate you being here on relative short notice. Okay.

MR. VAN ASTEN: Thank you, Your Honor.

THE COURT: We’ll stand in recess.

(The proceedings concluded at 4:15 p.m.)

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