TX man no-billed for shooting cop in no knock raid

[Balog]

Oh, and in some situations, as a prosecutor you need to present a case to the grand jury even if you don't think it is fully prepared.  If a person is arrested and jailed, they have a right to have the case presented to the Grand Jury within a set period of time.  Other times, you want to put evidence "on record," or "ask" the grand jury to subpoena records to assist the investigation along, which gets the case put on the schedule.  And, on occasion, evidence turns up later that no one could have foreseen.  I know of a molestation case where the matter was no billed, and several months later, a new victim came forward who was also a witness to what happened with the first victim.

Wait, grand juries can issue subpoenas? I thought all they did was issue a go/no go on indicting for a crime? Never had cause to be involved with the legal system so this is all new information to me.

[T.O.M.]

Not certain if the number is correct, but I'm pretty sure it took multiple attempts for the DA to secure an indictment. In fact, there have been a number of cases (particularly in Travis County) where several GJs had to be convened before an indictment was handed down - usually the DA's politics were the driving factor. Some pundits said that with enough time and effort, a DA could indict a ham sandwich in Travis County.

The "ham sandwich" line is famous for all grand juries, but I don't recall the original source.  Goes back to what I said about the issues with the system.  If a Grand Jury worked as intended, the prosecutor is nothing more than an aid to the jurors.  The way it has become, I fear, is that the jurors are now little more than a rubber stamp for the prosecutors.  Kind of like voting...the tool only works if the user does his/her part.

[T.O.M.]

Wait, grand juries can issue subpoenas? I thought all they did was issue a go/no go on indicting for a crime? Never had cause to be involved with the legal system so this is all new information to me.

The grand jury can direct the prosecutor to issue subpoenas on behalf of their proceedings.  Again, in theory, the grand jury runs the process, with the prosecutor being their tool (joke intended) for getting the cases investigated to their satisfaction. 

[Tallpine]

Not sure how the information got out in this case

Pretty high profile for a cop to have been shot/killed.

It was national news and I remember reading about it in December.

[T.O.M.]

Just spent an hour or so doing arraignments, and a thought occurred to me...

What I've been describing about the grand jury process is the ideal, the theory upon which the system was built.  Like many aspects of our government, when it was thought up and written on paper, it was a great idea.  As time has passed, and the world has changed, it may seem to be imperfect in its application.  As some of you have expressed concern about a prosecutor being able to present a case over and over again trying to seek an indictment.  As I thought about it, there are a couple of realities that I want to share that may help explain why I think creating jeopardy for grand jury is frankly unnecessary...
First, I can think of no circumstances where a person would be subject to grand jury proceedings for an extended period of time would be incarcerated, or even subject to bond.  Here in Ohio, a person has a right to have a case indicted by the grand jury, or a probable cause hearing conducted by a judge, within 10 days of being arrested.  If not complied with, the person must be released.  (forgive my lack of citations, it's been too long since I did that work, and I'm between hearings so i don't have time to look up the numbers for you.)  In many cases where an accused is subject to grand jury proceedings without being arrested, the person may not even know anything is happening unless or until a summons and indictment are served upon him/her.  With these in mind, other than the fact that it may affront out senses of civic morality and justice, there is no real impact on a person being investigated by a grand jury unless/until that indictment is handed down.
Second, in discussing things with Balog, I've been talking about the ideal situation...the grand jury issuing subpoenas, the grand jury calling witnesses.  In most/all jurisdictions, i know that this rarely happens, if at all.  Kind of goes back to that apathy issue.  People don't have the time or the desire to devote themselves full-time for three months or so to serving the grand jury.  People work their jobs and live their lives except for that one day or so that they have grand jury duty.  and I know it is likely worse in the jurisdictions where grand jury duty is a five-days-a-week commitment for a month or two.  The impact of all of this is that the prosecutor does everything, presents the bare minimum to the grand jury (trust me, I know.  in many cases, I had jurors outright tell me that they had heard/seen enough and they wanted to vote after a witness or two), and all the jurors do it vote on it.  The indictment is based on the facts and truth as filtered by the prosecutor.  An honorable prosecutor may present information on both sides of the case, while a prosecutor with a motive will only show the best cards in his hand, so to speak.  Now, I don't blame those people who serve on a grand jury for this.  I lament the fact that service to our system has become an inconvenience, and people often suffer for doing their duty as a juror.  I know of people who were punished by employers, or who had to pay for child care, or even take unpaid time off of work, to serve.  Yes, it is their duty as a citizen of this country.  But when people suffer for doing their duty, it impacts the quality of their service.  I know of no solution to this problem, but simply regret that what was such a great idea (both grand jury and petit jury duty) has become in many ways nothing more than an inconvenience.

[zxcvbob]

After the first GJ hearing, the second should have a simple choice; indict the accused for the stated crime or the prosecutor for harassment.

I'm pretty sure a state GJ can do that, they just don't know it.  Federal GJ's have been pretty much neutered; I can't remember what law stripped away their independent powers.

[KD5NRH]

I've presented a couple of cases where there the matter was "no billed."  Additional investigation turned up additional evidence, and upon second presentation, an indictment was returned.  Don't want to have a case considered legally dead because it was presented too soon, or have later important evidence found and it essentially be useless.

In a case where there is actual new evidence that legitimately wasn't available at the time of the original hearing, I can see allowing it.  If it's just a case of the prosecutor sitting on something so he can pull it out to get another hearing when the first one fails to indict, then it should only proceed to a second one with a new prosecutor after the first one has been hanged.

Also, in order to enforce such a thing, you would have to remove the secrecy of the grand jury proceedings.  Otherwise, how would you know if a case had or had not been presented to the grand jury.

It would be in the accused's interest to reveal the information at that point.  Presumably in the case of a no-bill, the accused gets some record.  If not, it certainly wouldn't be hard to write him a note that he can use next time.

[T.O.M.]

It would be in the accused's interest to reveal the information at that point.  Presumably in the case of a no-bill, the accused gets some record.  If not, it certainly wouldn't be hard to write him a note that he can use next time.

I'm picturing a bad prosecutor situation, where he presents an indictment time and again for some embarrassing charge, which is repeatedly no-billed, but a record keeps getting built up.  As a potential employee, I can imagine you might want to check the grand jury record (if you could).  You see a guy with a dozen no-bills, I bet you are going to hesitate before you offer the guy a job.  "Why?" you ask.  "He was no-billed."  Once or twice you might chalk up to bad luck or circumstances.  Get to a bunch, and you are going to think that the guy is either hanging with the wrong crowd, or is actually committing the offenses and getting away with it.

Personally, I still want no records kept if a case was considered and no-billed by a grand jury, simply because there should be no record for anyone to even ask about.  You all know how records can (and are) often used in bad ways.  heck, you guys don't even want your doctor to know you own a firearm, but you want the government to keep records of how many times you had charges against you presented to the grand jury?   

[Balog]

 

The only reason to make GJ no bills public is to attach jeopardy. So that would take care of the "dozens of no bills on record" issue, I would think.

[T.O.M.]

The only reason to make GJ no bills public is to attach jeopardy. So that would take care of the "dozens of no bills on record" issue, I would think.

I think it's a bad idea to create "double jeopardy" situations before any real jeopardy attaches.  I think it is a bad idea to make public records of all cases presented to a grand jury.  I think I could probably do a better job of talking about all of this with more time and fewer interruptions.  That said, I think it has been a long day at the courthouse, and I need to go home an open one of the bottles of Kentucky Bourbon Barrel Ales I picked up the other day. 

[Balog]

You do make a good point about keeping the GJ proceedings secret, which I didn't know about. Wasn't trying to argue one way or the other.

[zxcvbob]

He makes a good point about the ale too!

[KD5NRH]

I'm picturing a bad prosecutor situation, where he presents an indictment time and again for some embarrassing charge, which is repeatedly no-billed, but a record keeps getting built up.  As a potential employee, I can imagine you might want to check the grand jury record (if you could).

Or you could just search the archives of the local newspaper.

Besides, as Balog already pointed out, the whole point here is to stop allowing the prosecutor to do that.  Having to suffer through that process would already have ruined the accused far more than being passed over for one job.

[T.O.M.]

You do make a good point about keeping the GJ proceedings secret, which I didn't know about. Wasn't trying to argue one way or the other.

No worries.  Just been a bad afternoon.  Popped the top on the first ale, but a second may be necessary.  Again, looked at photos no one should have to see...

[T.O.M.]

Or you could just search the archives of the local newspaper.

Besides, as Balog already pointed out, the whole point here is to stop allowing the prosecutor to do that.  Having to suffer through that process would already have ruined the accused far more than beiing passed over for one job.

Let me ask, because this doesn't happen in my part of the world.  Reporters are not allowed anywhere near the grand jury room in this county.  The only records they can see are what indictments are handed down.  So, there are no newspaper archives to search.  As to the suffering through the grand jury process, an accused plays no part In that process.  Many who are accused are not even aware that they have been accused until after an indictment has been handed down.  Those people truly "suffer" nothing unless indicted.

[roo_ster]

Somehow every time a republican got the looksee from a grand jury in travis county texas it was front page news.

[KD5NRH]

The only records they can see are what indictments are handed down.

Around here, the accused is supposed to be notified.  While the defense doesn't technically have any rights at the GJ hearing, there are things the prosecutor can give permission for.  If the defense doesn't know about the hearing, then it's impossible to ask permission, thus the notification.  However, for anyone with two brain cells to rub together, this also means lawyering up right away, if for no other reason than to avoid saying anything to media or investigators that might cause problems, and that ain't cheap.  Of course, in most cases, they've already been arrested at or near the time of the offense, so they're aware, and the arrest reports are printed in the newspaper. 

Now, since the arrest is public knowledge, it sure would be handy if everybody also got to see a no-bill result, or if the accused was given some documentation of same to do with as he or she sees fit, but good luck even getting a not guilty verdict published if it wasn't a really high profile case. 

[seeker_two]

As long as qualified immunity covers as wide an area as Rosie O'Donnell's yoga pants, abuses like this will continue.....

Sent from my HTC One using Tapatalk

[T.O.M.]

Is there a problem with this?  We're all talking in theory about a prosecutor being able to present a case for indictment more than once, but I don't know that I have ever seen it actually done when I was a prosecutor.  Honestly, sometimes getting a jo bill was a great way to get rid of a loser case while having someone else to blame.  And, I worked in a relatively small county, where grand jury was one day per week.  But, it is still a good bit of time and effort to prep and present a case...I know there are probably times it has happened, and someone mentioned Tom Delay earlier.  But seeker_two's comment made me wonder how much "abuse" like this actually happens.  Or is it all just a fun debate among APS members (again)?

[AZRedhawk44]

Is there a problem with this?  We're all talking in theory about a prosecutor being able to present a case for indictment more than once, but I don't know that I have ever seen it actually done when I was a prosecutor.  Honestly, sometimes getting a jo bill was a great way to get rid of a loser case while having someone else to blame.  And, I worked in a relatively small county, where grand jury was one day per week.  But, it is still a good bit of time and effort to prep and present a case...I know there are probably times it has happened, and someone mentioned Tom Delay earlier.  But seeker_two's comment made me wonder how much "abuse" like this actually happens.  Or is it all just a fun debate among APS members (again)?

APS members tend to be the type of people that roll their eyes at "Government wouldn't do THAT!  That could never happen."

Income tax over 10%?  That would never happen!

Confiscation of arms?  That would never happen!

Regular violations of 4A via stop-n-frisk?  That would never happen!

So... if it's a means for government to abuse someone... they WILL find a way to do it.  Double-plus so if it's a loophole where they feel they can get away with it just because it isn't proscribed.  For government, no prohibition = permission in their eyes.  They've swapped roles with the citizenry according to COTUS powers designations, and inverted the 10A. 

[T.O.M.]

Roger that, AZ.  Just wondered if anyone knows of a problem along these lines,  or if we are in preventative mode....

[KD5NRH]

But seeker_two's comment made me wonder how much "abuse" like this actually happens.

A complete lack of transparency and documentation would make it pretty difficult to discover or prove abuse of the system as well.

[T.O.M.]

A complete lack of transparency and documentation would make it pretty difficult to discover or prove abuse of the system as well.

Very true.  I knew when I asked the question, it was pretty much rhetorical, because there is no way to know.  It's truly a double edged sword.  Grand jury proceedings were made secret to protect their investigations, protect the members from undue outside influences and retaliation, and also protect those who get no-billed, as we've been discussing.  On the other edge, secrets in the justice system don't really inspire trust among the masses, are subject to abuse, and are pretty much a bad thing.

[roo_ster]

In Travis County, it is pretty blatant how they will go after a political opponent multiple times.  May be slight variations to be considered a shiny & new accusation.

[Tallpine]

I just now saw a picture of the heroic deceased deputy 

Seriously, how did he possibly meet fitness requirements