This detail over, Heney called the Court’s attention to the provision of the California law, that no person whose name does not appear on the assessment roll of the county in which he serves is eligible for Grand Jury service, and that the courts have held further, that bias or prejudice of a Grand Juror against a person indicted is sufficient grounds for setting aside the indictment. Heney then stated that he wished to examine the nineteen men as to their qualifications as Grand Jurors.
Ruef, announcing himself as an officer of the court, arose to speak. Heney objected to Ruef appearing, if by officer of the court he meant District Attorney or Acting District Attorney. Ruef answered that he appeared only in his capacity as member of the bar. On this showing he was allowed to proceed.
Ruef contended that the procedure proposed by Heney was irregular; that if followed the validity of the Grand Jury would be imperiled. He stated that he did not want to see the Grand Jury made an illegal body.
Heney replied that he intended, as Assistant District Attorney, to present felony charges against Ruef, and desired to examine the prospective Grand Jurors as to their bias for or against Ruef. Furthermore, Heney insisted, the Court had authority to excuse a juror if he were not on the assessment roll. To accept as Grand Jurors men whose names were not on the assessment roll, or men biased or prejudiced against Ruef would, Heney insisted, make the proceedings a farce.[106]
In reply to Heney, Ruef defied him to produce any evidence “in open court before an untutored Grand Jury for an indictment.” Ruef charged Heney further with employing abuse “to make the Grand Jury illegal so that nothing might come of any indictment.”
At this point, the Attorney General of the State, U. S. Webb,[107] addressed the Court. At his suggestion the Grand Jurors were excused for the day. General Webb then stated that he knew of no law for the procedure which Mr. Heney suggested. He admitted, however, that such procedure would be desirable, and advised that no hasty action be taken in coming to a decision.
Heney in reply read from California decisions to show that The People have the authority to make examination of Grand Jurors, and continued:
“The only question remaining is as to when this examination shall be made. Suppose the foreman of the Grand Jury is biased or prejudiced. Does it require any argument that now is the time to make this examination instead of waiting until we have presented our evidence to the Grand Jury? Shall we first have to give those whom we accuse time to bribe witnesses and get them out of the country? Shall we let the defendant come in and quash the indictment, if there is any bias or prejudice, and then be enabled to protect himself against prosecution?
“After the miserable fiasco (the attempted removal of Langdon) which occurred last night,” Heney went on, “what more important duty for this Court to perform than to say immediately that the law is more powerful than any man or any set of men in San Francisco?”
As Heney concluded, the packed courtroom burst into applause. The crowd outside heard, took it up and cheered wildly. As soon as order was restored, Henry Ach, one of the attorneys appearing for Ruef, suggested that Heney, the Attorney General and himself, get together to present the question of whether Langdon or Ruef were District Attorney to the Supreme Court. Ach stated that he feared if Langdon or Heney attended a session of the Grand Jury and Ruef were to be found to be District Attorney, then the acts of the Grand Jury might be invalidated.