Durango defense lawyer Brian Schowalter is no fan of grand juries. They meet in secret with no judge present, have broad investigatory powers and work at the behest of prosecutors.

Schowalter became the subject of a grand jury investigation in 2013 when 6th Judicial District Attorney Todd Risberg accused him of tampering with physical evidence in a murder case in which Schowalter was defending one of the accused.

The grand jury issued an indictment, and Risberg filed a formal charge against Schowalter. Risberg then asked a prosecutor from another jurisdiction to litigate the case, citing a conflict of interest. The special prosecutor dropped the charge, saying there was insufficient proof.

Schowalter called it the worst experience of his life.

“I was completely innocent, and I got charged with something I didn’t do,” he said. “What if it was a layperson who didn’t know what they were doing and didn’t know to have counsel? That’s how innocent people get convicted.”

Grand juries can be created at the county, state and federal level. They can be impaneled to hear one case, or can serve a year or more and hear multiple cases. Grand jury decisions occasionally make news, for example, in 2014 when a grand jury in Ferguson, Missouri, declined to indict a police officer in the death of Michael Brown, or earlier this year when a Houston grand jury investigating Planned Parenthood instead indicted two anti-abortion activities who produced undercover videos.

Though grand juries make important decisions on legal matters, they are shrouded in secrecy. Jurors’ identities are kept secret and those appearing before them are prohibited from disclosing information they learn while testifying.

Jurors typically are citizens without legal training. Prosecutors present evidence, and if jurors find “probable cause” – a lower standard than “beyond a reasonable doubt” – they can issue an indictment, which is similar to charging someone with a crime.

“We give them a rundown of the case as we see it and tell them what we perceive the issues are,” Risberg said.

Witnesses and defendants can receive legal advice before the hearing, but not during the hearing. The defense offers no evidence or arguments.

A New York state chief judge once famously said that prosecutors have so much control over grand juries that they could convince them to “indict a ham sandwich.”

Jurors have the power to subpoena witnesses and documents. Anyone who lies to a grand jury can be charged with perjury, as was the case in 2011, when Durango resident Suzanne Garcia lied to the La Plata County grand jury in a murder case and was sentenced to six years in prison.

Unlike jurors in a trial, which must vote unanimously to convict, grand juries need only nine of 12 jurors to indict.

A frequent complaint of the system is that it eliminates a defendant’s right to a preliminary hearing, in which prosecutors must present probable cause to a judge that a crime was committed and the defendant is connected to it. At preliminary hearings, defense lawyers can question witnesses and present arguments, unlike at a grand jury hearing.

Risberg, who took office in 2008, convened the first grand jury anyone can remember in 2010 or 2011 in La Plata County. Since then, he has impaneled a grand jury every year. Some years it served just La Plata County, and other years it served the entire 6th Judicial District, which includes Archuleta, San Juan and La Plata counties. A grand jury is expected to be seated this month in Archuleta County to review a specific case, he said.

The yearlong jury typically meets once a month, sometimes several days in a row. If there aren’t any cases to consider, it doesn’t meet, Risberg said. Likewise, it might have extra sessions if needed.

“Typically, there are just a couple or a few (cases) every year for the grand jury to deal with,” Risberg said. “They’re not for everyday cases.”

It is just the opposite in federal court, where 99 percent of felony defendants have been indicted by a grand jury, said Jeffrey Dorschner, spokesman for the U.S. Attorney’s Office in Denver.

One notable case that went before the local grand jury involved Joseph Dernoga, who in 2011 was indicted in connection with killing his step-brother. He was sentenced to 16 years in prison after pleading guilty to second-degree murder in a plea agreement with the District Attorney’s Office.

Some defense lawyers and legal experts say grand juries are susceptible to prosecutorial misconduct and manipulation.

Risberg, who is term-limited, has touted the creation of the local grand jury as one of his achievements. Assistant District Attorney Christian Champagne, who is running to replace Risberg, also touted its creation. But DA candidate Ben Lammons said they must be used judicially, only in complicated or high-profile cases such as the JonBenét Ramsey case.

Lammons faulted Risberg’s handling of Schowalter’s case, saying it should have been referred to a special prosecutor from the beginning. Risberg and Schowalter are legal adversaries who go head-to-head regularly in court. They have to maintain a level of collegiality and professionalism, and pursuing a criminal charge against a colleague has potential long-term ramifications, Lammons said.

About 10 criminal defense lawyers sat behind Schowalter in an apparent show of support when he had to appear in court to be formally charged.

Risberg said defense lawyers will complain about almost everything prosecutors do, but he followed procedures.

“Most people don’t know the extent of what was going on,” he said. “It’s not something I want to get into.”

Risberg said grand juries allow prosecutors to gauge a community’s sentiments and likelihood of conviction.

“It’s 12 community members that we can talk to and ask them what they think should happen, if this is a case that the government should be involved in, if this is something that we should pursue as a criminal matter,” Risberg said.

Durango defense lawyer Tom Williamson said district attorneys should be able to make controversial decisions and stand behind them.

“What the DA can do is just walk away from the indictment and go, ‘Well, it was up to the grand jury.’ Really?” Williamson said. “It’s really up to the DA to bring it to the grand jury and then it’s a one-sided affair. I think it’s an avocation of responsibility. If there’s a crime, charge it.”

Risberg said grand juries don’t always indict, and in those cases, defendants are spared a formal charge and potential public humiliation. If someone is indicted, transcripts of the grand jury proceedings become public, he said.

“Part of the grand jury function is to protect people from publicity,” Risberg said. “We don’t want to drag somebody’s name through the mud. That’s why they operate in secret.”

Risberg also likes that grand juries have broader investigatory power.

“Nobody has to talk to police investigators, but a grand jury can subpoena people and ask them questions under oath,” Risberg said. “It’s a way to get more information to investigate cases.”

Subpoenaed defendants can invoke their Fifth Amendment rights, which means they don’t have to answer questions that could incriminate them. Schowalter said he took the Fifth Amendment, and, inexplicably, Risberg offered him immunity for his testimony, which meant the only thing Schowalter could have gotten in trouble for is if he lied to the grand jury, which he didn’t.

Schowalter said the grand jury system is flawed and has no place in a community such as La Plata County.

“For somebody, especially in this jurisdiction, to act like these are great things when you’ve got a proven example of somebody who didn’t do anything wrong – in fact, was doing their job – and then gets charged with a crime, I think that reflects really poorly on the grand jury system,” he said.

shane@durangoherald.com