Furthermore, there are instances, as when Abe Ruef was before the Grand Jury at San Francisco, when the ends of justice require that the testimony given shall be kept secret. But, in spite of these and other considerations, the measure in question was allowed to die in Committee.
On the other hand two bills requiring that transcript of such testimony be given the defendant passed both Senate and Assembly. They were introduced by Wheelan of San Francisco.
Section 925 of the Penal Code, as it stood up to the time of the opening of the session, provided that "the Grand Jury whenever criminal causes are being investigated before them, on demand of the District Attorney must appoint a competent stenographic reporter to be sworn and to report the testimony that may be given in such causes in shorthand, and reduce the same upon request of the District Attorney to long hand or typewriting." It was thus left with the District Attorney to say whether the stenographic reporter should be present, and whether his notes should be transcribed.
The first of the Wheelan bills, Assembly bill 221[79], amended the law by cutting out the words in italics "on demand of the District Attorney" and "upon request of the District Attorney," making it mandatory upon the Grand Jury to have the reporter in attendance.
Further on in the section and in Assembly bill 222[79], it was provided that a true copy of the testimony thus taken should be given the defendant at the time of his arraignment.
These two measures passed both Senate and Assembly.
Assembly bill 223[79], also introduced by Wheelan, provided another cause for the setting aside of an indictment by the Court in which the defendant is arraigned, upon such defendant's motion. The Commonwealth bills aimed to prevent technical attacks upon indictments. The third of the Wheelan bills - No. 223 - opened the way for further technical attacks, by providing that the Court must set aside the indictment "when it appears from the testimony taken before the Grand jury that the defendant has been indicted upon a criminal charge without reasonable or probable cause."
This measure passed both Houses. It opened the way for review before the Court of the testimony taken in the Grand jury room, and endless technical objections, all of which by clever counsel can be employed to delay the case being brought before a trial jury, and in the end perhaps wear out the prosecution, thus preventing the case being tried on its merits. With that section in the law two years ago, it is a question whether the defendants in the graft prosecution at San Francisco would ever have been brought to trial.
It will be seen that while the Commonwealth Club bills aimed to decrease the opportunities for technical defense of men charged with crime, and thus permit the cases being tried on their merits, the Wheelan bills increased opportunity for technical objection.
The history of the passage of the Wheelan bills is practically the same in each instance.