GRAND JUROR TO FIGHT REMOVAL; MAN CALLS EFFORT PAYBACK FOR INDEPENDENCE.

Byline: Patrick McGreevy Daily News Staff Writer

A member of the Los Angeles County grand jury has been ordered to appear in court today to explain why he should remain on the panel and to rebut allegations that he violated confidentiality rules.

Retired attorney Jerry S. Berk, who has just 10 days left on his term, asserted Thursday in an interview that he faces removal as retaliation for having challenged prosecutors' control of the grand jury and for refusing to issue what he says were meritless indictments for the District Attorney's Office.

The confidentiality rules that prosecutors say Berk broke stem from a letter that he wrote to Los Angeles County officials about a grand jury report that he co-authored.

``The basis for the hearing is your attempt to communicate with members of the Board of Supervisors and Chief Administrative Officer,'' according to the order for Berk to appear in Los Angeles Superior Court. The order was signed Tuesday by Supervising Judge John H. Reid, who declined to discuss the matter, except to say that it is unusual for someone to be removed from the grand jury.

``When was the last time we had a volcano?'' Reid asked. ``It doesn't happen every year.''

Los Angeles County Deputy District Attorney Steve Licker, the grand jury's adviser, refused to discuss details of Berk's case.

Berk said the allegation is without substance and that the real reason he faces removal is his repeated challenge during the last year to the control traditionally exerted on the grand jury by the District Attorney's Office.

``There is an attempt that has been made to have the grand jury become an arm of the District Attorney's Office and to be a rubber stamp,'' Berk said. ``I have objected to that.''

``They are doing this to try to attach some obloquy to me, to teach me a lesson as well as all the grand jurors, that you can't run up against the District Attorney's Office,'' added Berk, a 77-year-old Sherman Oaks resident.

While not commenting on Berk's specific case, district attorney spokeswoman Sandi Gibbons said the 23-member grand jury is not unduely controlled by prosecutors.

``The grand jury is an independent body. They basically make the calls. We proffer legal advice,'' Gibbons said.

Berk said he cannot understand how his letter to county officials has broken any rules, particularly since it never was sent. In the letter, he attempted to address criticism by the sheriff's ombudsman of a grand jury report recommending that all county departments receive ombudsmen appointed by the Board of Supervisors.

Berk said the grand jury secretary, an employee of the district attorney, had typed the letter and a copy was provided to Licker, who stopped it from going out.

The letter was an excuse, Berk said, for prosecutors to get rid of him despite the short time left on his term.

Berk said he believes he is being targeted because of his ``refusal to indict and the questioning of their authority.''

``Listening to the evidence presented in cases, I came to the conclusion that this was a `star chamber' hearing. It's ridiculous and unfair,'' Berk said. ``The accused has no chance to hear the evidence presented or to answer it.''

Berk, a former civil litigator, said he angered prosecutors by asking them for exculpatory evidence in cases. ``Their answer was if we don't give any, there isn't any,'' said Berk.

Berk also locked horns with Licker because the prosecutor required all questions from jurors to be submitted in writing. ``You've got to write pretty fast and you can't ask follow up questions because you don't know that their (witnesses') answer is going to be,'' he said, adding that sometimes witnesses are hustled out before a question can be submitted.

Berk also said the prosecutor sometimes edited the questions, even refusing to ask some.

Gibbons said the practice of requiring written questions that prosecutors can edit is necessary to protect against defense attorneys who could use grand jury transcripts to seek a dismissal based on improper questions.

``That has always been done for legal reasons,'' Gibbons said.

Berk said he believes his troubles also stem from the grand jury's decision this year to reject prosecutors' requests for indictments in two high-profile cases.

Sources say that in one case, the prosecutors sought the indictment of Redondo Beach officials who were suspected of eavesdropping on officers discussing a labor dispute with the city.

Berk refused to discuss details of the case except to say: ``It was a tempest in a teapot,'' Berk said.

In the other case, an employee of a downtown company had died in a fall from a platform that did not have a railing. The district attorney wanted to indict a company official for murder. Berk said he and other grand jurors felt there was no criminal intent just because dangerous conditions existed.

Gibbons declined to comment on both cases.

Berk also complained that a highly critical report on problems in youth group homes was edited so that the final report made public in April did not reflect the seriousness of the concern that grand jurors felt. ``It was watered down,'' he said.