Wednesday, April 23, 2014

Transcript shows Grand Jury dispute

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.


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?


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.)

Special to the Democrat


Discussion | 15 comments

  • 1036-FrankMarch 28, 2013 - 9:14 am

    This seems like a dysfunctional dispute over too many chiefs and not enough Indians, but it raises as many questions as it answers. If a member was a problem and was removed then why did the GJ dissolve? Or was it the Foreperson who was the problem? the question is obvious was it simple dysfunction among the panel or is it really something else involving others? Were emails being sent to certain parties who were in violation of the law to receive them? The behind the scenes real story will come out soon I am sure.

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  • Phil VeerkampMarch 28, 2013 - 2:56 pm

    Frank Ryan Donner first published his account - On: March 25, 2013 - Lake Tahoe News - Within his account is a link to the Court's proceeding - LINK - By Ryan Donner - I served as a member of the 2011-12 El Dorado County Grand Jury and began serving a second term on the 2012-13 El Dorado County Grand Jury

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  • Phil VeerkampMarch 28, 2013 - 2:59 pm

    My money is on "revolt" against van Asten - just a hunch.

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  • James SmithMarch 29, 2013 - 5:36 am

    It appears that the GJ members were sick of being intimidated and told what they could and could not investigate by Forperson Van Asten who reported directly to the Judge. It also appears that after this deposition/interrogation session of intimidation went down, the other GJ members defected as they most likely felt they were being limited in their normal powers and latitude to investigate local corruption. How about a Judge in charge of the GJ that isn't related to a County Supervisor? It appears from this article and other hearsay that the GJ was not being allowed to investigate certain corruption problems, because the GJ members had become merely puppets that were being dictated to and puppeteered by Van Asten, the Judge and ultimately a couple of County Supervisors sitting in the back of the room watching the puppet show. Go back to the first Lake Tahoe News article and read the references to two County Supervisors names. A few of us have a very good idea as to one of the hotly contested items the GJ has been asked to investigate - but wouldn't due to nepotism.

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  • EvelynMarch 29, 2013 - 6:21 am

    This is the March 1st Lake Tahoe News article James Smith references: "El Dorado County Grand Jury disbanded".

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  • RaulMarch 29, 2013 - 10:22 am

    Does anybody with any knowledge or experience in dealing with El Dorado County elected officials really think that this was just a personality conflict? There is dirty stuff going on that the GOBs do not want exposed.It certainly is not limited to just certain BOS members, but includes other elected public guardians (sic). We demand an outside investigation!

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  • InformedMarch 29, 2013 - 11:58 am

    Sorry, but you are wrong. Ray Van Asten resigned, and 13 members promptly resigned after him in SUPPORT of him. He was in no way corrupt. Ryan was extremely combative in session on non-investigative issues making it very difficult to focus on any investigations. Ryan and Ray simply did not get along, and if this ends up in hearings, the public will see that Ryan's attempt to manipulate the community if misguided and false. Ryan quit in August/September and was NOT privy to the situations that took place that lead to the disbandment of the jury I repeat, Ryan has no idea what he is talking about in his media releases. He is speculating, just as you are.

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  • Compass2TruthMarch 29, 2013 - 1:16 pm

    The GJ was already having problems with the foreman early last summer. Connect the dots...The problem appears to be the culture of corruption within EDC. Anyone who challenges the GOB system will be targeted for bully tactics and retaliation. There is a price to be paid for defending truth and liberty, and like our founding fathers, few have the character to risk the consequences for the possibility of victory.

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  • Under -InformedMarch 29, 2013 - 1:48 pm

    You’re Wrong Informed. Ray Van Asten and Ryan both resigned. We believe Mr. Asten to be a product of our local GOB system. Ryan stood up for his principles, your type, Informed, would describe that kind of honorable behavior as extremely combative, as you have done in the past with previous jury members and others like Jack Sweeney. Ryan and Ray simply did not get along, that’s true, we believe Ray was on a mission to protect the statuesque and Ryan to break the mold so that our community can move ahead. Distraction seems to be the goal of you post. One thing that hasn’t been discussed is what part did county elected officials play in this over all drama? Guess we will have to wait for the second act.....

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  • Compass2TruthMarch 29, 2013 - 5:16 pm

    Case in point about the Grand Jury BOS-GOB is the 4/2 BOS meeting agenda, Consent Item #5. I requested this item be pulled from Consent for discussion just this morning when it was publicly posted. Whenever the BOS doesn't want to deal with malfeasance, they obfuscate and divert the issue in the hope the public will just get frustrated & lose interest. The materials requested be posted to this particular DOT-CIP item 2 weeks ago included GRAND JURY correspondence implicating Asst. CAO Kim Kerr and Supervisor Briggs. Lo and behold, just hours later the item was AGAIN deferred to 4/23, likely due to content of the relevant materials requested be made public.

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  • R SmithMarch 29, 2013 - 9:06 pm

    Speculation, sometimes called circumstantial evidence, is not all bad. We cannot see the wind yet we see what the wind does. It looks like our omnipotent leader of the jury tried to run with the big dogs. They will now likely assign him to a position of “under the bus”. If you throw a rock into a pack of dogs, the one that yelps is the one that got hit. This fact may provide us with the far reaching truth in this matter. If there is no foul in this matter then there is no harm. Or is there? The big dogs are probably out purchasing a bag of Johnny Cat about now with which to bury the hatchet, however, the scar will remain. We citizens should fear not for the wheels of government will still roll in our service being ever mindful that there is still plenty of room under that bus.

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  • Compass2TruthMarch 30, 2013 - 10:16 am

    The real issue is about investigating Grand Jury corruption culminating in an unprecedented disbandment, NOT about jury members sexual preferences. Although some may not agree with Ryan's private life, he should be applauded for his courage in exposing the GOB works of darkness to the light of TRUTH. Bully tactics are never OK. Don't shoot the messenger (Ryan). In other words, our "justice system" is a mess. Those manipulating the SYSTEM need to be scrutinized meanwhile holding the responsible feet to the fire.

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  • Compass2TruthMarch 30, 2013 - 10:30 am

    R Smith: Johnny Cat (Oil Dri) stock is up .06 percent to $27.23. The EDC GOB are going to need a lot of Johnny Cat to cover up their doo-doo. One way or the other, this GJ scandal has caused quite a stink. Now might be the right time to consider investing in Johnny Cat products:

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  • EvelynMarch 30, 2013 - 11:20 am

    It is helpful to read the transcript together with Mr. Donner's concurrent LTE (HERE), the contents of which so far have not been disputed.

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  • Compass2TruthMarch 30, 2013 - 12:52 pm

    A history lesson relevant to the Grand Jury Investigation - AUTHOR: Wendell Phillips (1811–84) QUOTATION: "Eternal vigilance is the price of liberty. Power is ever stealing from the many to the few. The hand entrusted with power becomes the necessary enemy of the people. Only by continual oversight can the democrat in office be prevented from hardening into a despot: only by unintermitted Agitation can a people be kept sufficiently awake to principle not to let liberty be smothered in material prosperity."

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