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The Challenge of Grand Jury Proceedings in Texas

The foundation of our legal system provides equal opportunities for both prosecutors and defense attorneys to present evidence and assert claims in court in order to have a fair trial. The process leading up to the return of a criminal indictment does not rest on the same concept of an even playing field. Grand juries investigate and return indictments in felony cases. The very use of grand juries within the criminal justice system has become a controversial topic for many Americans recently.

What Happens Behind Closed Doors

Once a grand jury is convened, prosecutors may present evidence in secrecy, often with no record of testimony before the grand jury. The grand jury’s only legal adviser is the prosecutor, and there is generally no record of the instructions provided to them by this attorney. The Texas Code of Criminal Procedure provides that “no person shall be held to answer for a felony unless on indictment of a grand jury.” Yet only the testimony of “a person accused or suspected” of committing a crime must be recorded. Others may testify without being recorded, thus leaving the public, the trial court, and the person or persons indicted completely in the dark about what transpired.

Efforts are being made to amend these laws in order to create more transparency for those accused. Texas House Bill 2398 was filed this past February – a bipartisan proposal before state lawmakers requiring prosecutors to share evidence with grand juries that might help a suspect’s case. If passed into law, this amendment would bring Texas’ grand jury requirements for recording testimony in line with those passed by Congress in 1979, when the Federal Rules of Criminal Procedure were amended to require recording of testimony of all witnesses who appear before a grand jury.

In addition to having prosecutors share exculpatory evidence that is favorable to the accused, the recently introduced grand jury reform bills would also allow for the suspect’s attorneys to be present during questioning and would prevent prosecutors from going to another grand jury if the initial grand jury declines to indict (unless new evidence arises).

State Representative Senfronia Thompson (D-141st District) filed the legislation with Senator Dawn Buckingham (R-24th District) filing a similar bill with the Texas Senate. Buckingham stated:

“These procedures were originally meant to provide checks and balances against oppressive prosecution or potential witch hunts. Today, however, those proceedings sometimes give state prosecutors an unfair advantage over the accused, even when the accused are innocent of any crime.”

On the other hand, Director of Government Relations for the Texas District and County Attorneys Association, Shannon Edmonds, has stated the legislation would allow for criminal defendants to begin fighting a case prior to it even entering the courtroom. Mr Edmonds claimed:

“They’re both pretty much every criminal defense lawyer’s Christmas list delivered early.”

Other States Are Making Similar Changes to Grand Jury Laws

Texas isn’t the only state considering these updates; Kansas in particular has already adopted such practices following a decision by the Kansas Supreme Court in 2014 which clarified that Kansas offers more due process protections than are afforded under federal law in grand jury proceedings. Just this past February a Wyandotte County judge asserted the Kansas City Attorney General had ‘irreparably tainted’ a grand jury with prejudicial evidence. This was done in order to obtain indictments against several Schlitterbahn employees and associates involved in the design, construction, and operation of a waterslide that was a major factor in the highly publicized death of a 10-year-old boy at the Kansas City waterpark in 2016.

Judge Robert Burns, however, dismissed the indictments against the three individuals and two corporate affiliates of Schlitterbahn. He ruled in favor of the defense attorneys, who argued the lawyers in Kansas Attorney General Derek Schmidt’s office had shown a Wyandotte County grand jury evidence that would not have been admissible in trial. Judge Burns found the evidence in question would have improperly influenced the grand jury in handing down criminal charges.

“The court has grave doubts as to whether the irregularities and improprieties improperly influenced the grand jury and ultimately bolstered its decision to indict these defendants,” Burns said. “Quite simply, these defendants were not afforded the due process protections and fundamental fairness Kansas law requires.”

Houston Public Interest Attorneys

At Drumheller, Hollingsworth & Monthy, LLP we offer assistance on a wide range of criminal defense and public interest matters. Our past experience includes taking on unjust laws, regulations, and practices that affect vulnerable and underprivileged individuals or populations. We also work with clients to fight for or against policy change, particularly when that change adversely affects the community at large. Contact us today to learn more about how we can help you directly with your case.

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