The Grand Jury's Veil of Secrecy? (9/7/97) 
 I noted the other day that a Dallas County Grand Jury had declined to indict Dallas Cowboy Nate Newton in connection with allegations that he had sexually assaulted a former paramour. Ironically, in this age of information, the public was unable to learn what the witnesses said or what the prosecutors had recommended to the grand jury. Frankly, the only way that it became public as to who testified before the grand jury is that the reporters who covered the case happened to know the location of the door that lead to the grand jury room.

But a reporter covering a grand jury will experience a level of frustration not accustomed to those that are familiar with the Texas Open Records Act. Special rules exist for grand jury proceedings. The prosecutor cannot repeat what was said in the room and even those that testified before the grand jury are prohibited from divulging what they spoke about.

And the veil of secrecy that hangs over the process is not the only unusual aspect of the grand jury system. A defendant has no right to testify before the body. That, of course, means a grand jury can meet to decide whether John Doe should be indicted and John Doe has no right to tell them his side of the story. (My policy is to always allow a defendant to testify if he so desires, but I'm under no obligation to do so). But even when a defendant is allowed to testify, his lawyer cannot be in the room with him. This, obviously, is not a tremendous incentive for a defense lawyer to present his client for questioning.

What's even more odd is that the prosecutor is not required to present evidence that would tend to indicate that a defendant is not guilty. (The Supreme Court told us this in 1992). Taken to extremes, a prosecutor could know of an alleged eyewitness who is willing to testify that a defendant did not commit a particular crime  yet the grand jury can lawfully be prevented by the prosecutor from knowing of his existence.

The process seems somewhat indefensible. In theory, the grand jury is in place to protect the public from an unscrupulous prosecutor. No one can be convicted of a felony offense unless they have first been indicted by a grand jury or they give up that right. But of course, that individual could not likewise be convicted unless a trial jury found him guilty (or he also gave up that right), so the grand jury simply provides an extra level of protection.

But how much protection can a grand jury provide if they hear only one side of the story, that being the State's?  That's a legitimate question which the defense bar has been asking for years. Every legislative session they attempt to have a bill passed that would give a defendant and his lawyer the right to present their side of the story to the grand jury. So far, such efforts have failed.

I've always taken a somewhat unusual approach with the grand jury. Even when I believe a defendant is guilty, I certainly want the grand jury to hear even the bad aspects of my case. Even though the body need only be convinced that a person "probably" committed a crime before they choose to indict him, I'm not real excited about a case which barely meets that standard when I know on down the line I'm required to prove the defendant's guilt to a trial jury  beyond a reasonable doubt. If I've got problems with my case, I'd rather learn about it at the grand jury level than at a full blown trial.

And make no mistake about the other extreme of the criminal judicial process as well. There are some cases that a prosecutor knows cannot be won, yet for him to refuse to prosecute those cases would be political suicide. In those cases, it is not uncommon for the grand jury to be called upon to review the case. In most cases, a reasonable grand jury will agree with a reasonable prosecutor that the evidence is insufficient to charge a defendant with a crime. However, the public, for good reason, is more accepting of a grand jury's decision not to charge a defendant with a crime than if a prosecutor were to make the same decision.

The grand jury process is indeed a strange one. When all the hoopla is stripped away, however,  those twelve citizens rely heavily on the prosecutor that presents the cases to them. Regardless of the number of safeguards that are set up, a society ultimately has to rely on an individual's honesty to make sure the system works as it was originally envisioned. And with all of the secrecy surrounding the grand jury process, the creators of the system must have envisioned an honest prosecutor in charge of the system. If they did not, we have every reason to wonder what they were thinking about when they came up with the plan.

Barry Green is the District Attorney for the 271st Judicial District.

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