New Dallas Grand Jury Policy-Texas Lawyer

Dallas Policy Lets Defense Attorneys Address Grand Juries
By John Council
Texas Lawyer

Monday, October 1, 2007

It’s often said that a prosecutor could indict a ham sandwich if she wanted to. But a new procedure that goes into effect this month in Dallas County will give criminal-defense lawyers a chance to take their clients off the grand jury’s menu.

Starting Oct. 4, the Dallas County District Attorney’s Office will offer criminal-defense attorneys the opportunity to appear before grand juries to make presentations on behalf of their clients.

Under §20.03 of the Texas Code of Criminal Procedure, state prosecutors largely control grand jury proceedings, in which a panel of citizens decides in secret whether probable cause exists to indict a person charged with a felony.

The law allows an attorney for the accused to address the grand jury “if approved by the state’s attorney,” according to §20.04 of the code. Some Texas prosecutors allow criminal-defense lawyers to appear before a grand jury on a case-by-case basis, yet few large DAs’ offices have a general policy of approving those appearances.

But that’s exactly what Terri Moore, Dallas County’s first assistant district attorney, plans to let criminal-defense attorneys do — with some limitations.

“This is all about fairness,” says Moore, who proposed the change. “Obviously, they can’t be in the grand jury room while business is being conducted. They can’t question witnesses.”

Moore believes a better-informed grand jury will result in weak cases being disposed of earlier in the process instead of later — an effort she believes will benefit everyone involved in the system, including prosecutors, criminal-defense lawyers and their clients.

“This is not a railroad we are running,” Moore says. “This is a justice system.”

The Dallas County DA’s Office will become the largest DA’s office in Texas with such a practice. The Tarrant County DA’s Office is the only other large office that follows such a policy. Moore is a former Tarrant County assistant DA.

Criminal-defense attorneys criticized the Dallas County DA’s Office in the early 1990s for not screening cases closely enough before submitting them to grand juries. The result was that questionable cases clogged the felony courts, says George Milner III, a former Dallas prosecutor who now is a criminal-defense attorney. But in recent years, the office has cut down on weak cases by placing more-experienced prosecutors in the intake and grand jury divisions, adds Milner, a partner in Dallas’ Milner & Finn.

The Dallas DA’s Office, like most district attorney’s offices around the state, has had a longstanding practice of allowing criminal-defense lawyers to submit letters to grand juries summarizing their clients’ views of cases. But letting criminal-defense lawyers inside the grand jury is a different situation, Milner says.

“It’s a big change,” he says. “If there’s a specific issue, you can talk about it with the grand jury. It provides for much more dynamic representation as opposed to submitting a written summary.”

“It’s unusual,” Southern Methodist University Dedman School of Law professor Fred Moss says of the policy.

Moss says that laws in 19 states allow criminal-defense attorneys into grand jury rooms to counsel clients who choose to testify, but Texas is not one of them. The clients can exit the room to ask their lawyers questions, though, says Moss, who teaches criminal law.

“It’s an interesting gambit but certainly has pitfalls for both sides,” Moss says. “The question is why would a DA do that and why would a defense attorney want to go in there and lay out their case so early? It’s sort of a high-risk strategy on both parts.”

Not So Fast

Other Texas DAs’ offices are not so keen on a policy that lets defense lawyers inside grand jury rooms. The main reason is that grand jury deliberations are not meant to be adversarial proceedings, several district attorneys say.

“It’s advocacy, and it doesn’t seem to have a place in grand jury. I tell my staff not to advocate on true bills,” says Harris County District Attorney Chuck Rosenthal. “It’s a matter of whether we want to have someone come in and advocate for a particular position.”

Matt Bingham, Smith County’s DA, also questions the need for having defense attorneys in grand jury rooms. Grand juries often request that defendants testify. But by the same token, criminal-defense lawyers often urge their clients not to testify to keep them from incriminating themselves, he says. Bingham wonders why a criminal-defense attorney should be allowed to take the place of a client before a grand jury.

“I think the thing would be: Why is the defendant not testifying and where is the attorney’s information coming from?” Bingham asks. “I don’t call witnesses before a grand jury to speculate on what the facts are. I want to bring witnesses before a grand jury that have personal knowledge.”

Bill Wirskye, a former Dallas County assistant DA who left the office in January to become a criminal-defense lawyer, believes the practice could cause some problems for Dallas prosecutors, who present as many as 80 cases before a grand jury per day. Allowing defense attorneys to become part of the process could slow it down, he says.

“As a prosecutor you have to guard against the grand jury’s tendency of having a jury trial down in the grand jury as opposed to having a probable-cause hearing,” says Wirskye, an attorney with Dallas’ Fitzpatrick Hagood Smith & Uhl. “I can see some practical problems from the DA’s perspective.”

But overall, Wirskye believes the idea is a good one.

“It adds to the appearance that the DA’s office is doing the right thing, which is good in the long run,” he says.

The bigger risk of the new procedure may be for criminal-defense attorneys themselves, three lawyers say.

A problem could pop up if a criminal-defense lawyer tells the grand jury one thing and the client testifies later at trial to something else, says Brad Lollar, chief of the Dallas County Public Defender’s Office. The criminal-defense lawyer could have just committed a crime, Lollar says.

“If the attorney turns out to tell the grand jury something that isn’t true, can they get themselves indicted for aggravated perjury?” Lollar asks. “Obviously we were not there at the scene of the crime. Are we testifying, or are we talking to them off the record? And if we’re testifying, I don’t know too many attorneys that will want to do that. Everything we know we know through the clients.”

Moore says the plan is not to make criminal-defense lawyers witnesses.

Still, there are details involving criminal-defense lawyers’ presentations that need to be worked out, says John Grau, a Dallas County assistant DA who is chief of the intake and grand jury divisions.

“That’s one of the last little wrinkles I’m trying to figure out,” Grau says. “If the story changes, there will be a record if it changes. I don’t expect that will happen. And I think people will give versions that their client gives. But it is possible that the attorney gives a version that the client decides isn’t good” and leaves the lawyer hanging out there.

Then there’s the potential that the grand jury will ask the criminal-defense lawyer questions they aren’t prepared for or are not in their clients’ best interests to answer, Grau says.

“They might get asked questions by the grand jury, and it could be an interesting question,” Grau says. “They’re going to have to be careful as to what’s a problem for them. If they [a grand juror] ask a question that they can’t answer, is that going to torque off the grand jury worse than if they hadn’t appeared? That’s why I suggest the defense lawyer come see me. I don’t want to know your secrets, but I’m more than willing to tell them that’s a good path or a bad path.”

There’s also the possibility the grand jury may not want to hear from a criminal-defense attorney, Grau says. Grand juries are in control of which witnesses they want to hear from, he says.

“That will take a little bit of finesse on our part. Because I have had grand juries that are quintessentially conservative who didn’t want to hear anything from a defense lawyer,” Grau says.

But another aspect of the office’s policy is that new grand jurors will hear from a criminal-defense attorney during their orientation about the importance of listening to both sides of a case, Grau says.

During the grand jurors’ Oct. 3 orientation, Robert Udashen, a partner in Dallas’ Sorrels & Udashen and president of the Dallas Criminal Defense Lawyers Association, will give a presentation about the importance of the decisions they make.

“I will stress what a monumental thing it is to return an indictment — it can ruin someone’s life,” Udashen says. “Even if they’re found not guilty, it follows a person around.”

Tarrant County’s Policy

Since the 1970s, the Tarrant County District Attorney’s Office has had a policy of allowing criminal-defense attorneys to make grand jury presentations.

“We want the grand jury to know everything that is relevant out there,” says Kurt Stallings, a Tarrant County assistant DA who is chief of the Pretrial Division, which oversees the grand jury. “And it is not unusual for us to contact a criminal-defense attorney and ask them if they would like to make a presentation to the grand jury.”

“We may run into witnesses that say, “You don’t know the whole story,’ ” Stallings says. “And we’ll call the defense attorney and say, “Do you know anything about this?’ and invite them in. It’s not fair to anybody to go all the way to a jury and find out, oops, somebody was lying.”

Stallings doesn’t recall any problems with the policy.

Sometimes it works out better for the client that his defense lawyer makes a presentation instead of the client testifying, Stallings says.

“The reason this guy has a defense lawyer is he isn’t that smart,” Stallings says. “That’s the whole reason he needs a defense lawyer.”

Tim Evans, a criminal-defense lawyer with Fort Worth’s Evans Gandy Daniel & Moore, says he has made grand jury appearances periodically during his 20-year career that have resulted in 10 to 15 no bills.

Evans says not every case he handles is worth him making a grand jury appearance.

“It has to be something marginal proofwise or something that has a special equitable argument: “Yeah this happened, but is this really something you want to prosecute as a policy matter?’ ” Evans says. “I mean, Lord knows we have some real live cases that need prosecuting. But quite frankly there are some that don’t measure up and need resolving” before indictment.

Evans says Tarrant County’s policy has been good for everyone at the courthouse.

“I can’t believe that all the DAs’ offices in the state don’t do it,” Evans says. “And I’m pretty excited that the Dallas DA’s office is doing it.”