Had a Defense lawyer the other day express his intent to send information by letter form to my grand jury on a significant case.

I am opposed to this action; however, I understand that it may be permissible.

Anyone with experience on this issue or the rules that govern please advise.

Thanks

Steve Keathley

C.C.P. art 20.04 probably applies here. "If approved by the State's Attorney. We allow this in Collin County. For the most part, it doesn't change things and the defense theory is laid out from the beginning. We especially enjoy the handouts with glamour shots and family pet.

The content of the letter could conceivably violate sec. 36.03 or 36.04 of the Penal Code. The father of one of our defendants (who was going to be reindicted for an offense) addressed a letter to individual grand jurors before they met, and we really frowned on that. I would imagine the attorney would steer clear of these types of problems.

I can't imagine that any reputable defense lawyer would address a letter to the grand jury which "by means of coercion" would attempt to influence the grand jury to violate its "known legal duty." CCP, Art. 36.03. First of all, the grand jury's "known legal duty" is to consider the evidence brought before it, and to determine, first, if a crime has been committed, and second, whether the person the State has fingered is likely the person who committed the crime. Second, how in the world can a defense lawyer's letter "coerce" a grand jury, given that the DA is the only lawyer present when the "facts" of the case are presented?

Further, even if a defense lawyer sends a letter to the grand jury, with the intent of procuring a "no bill," is a grand jury proceeding an "adjudicatory proceeding," as required by Art. 36.04 of the Code of Criminal Procedure for a prosecution for "Improper Influence?" Maybe; maybe not. I don't think so.

Bottom line, for me, is that defense counsel should be very selective in communicating with the grand jury, and DAs should take seriously any grand jury communications proffered by reputable defense lawyers. There is a REASON we communicate with grand juries, and, assuming such communications are not overly frequent and/or all-encompassing, prosecutors should take note, and review their files, prior to presentation to the grand jury.

Sometimes, the proper thing to do is to NOT present a case to the grand jury; or, perhaps, "present" the case for the purpose of obtaining a "no bill."

One man's opinion.

Duer

Call me a pushover ... but if a defense attorney wants to present something to a grand jury (short of coming inside, of course) I let them. I have volunteered to hand deliver the letter that the defense attorney wanted them to see. It seldom makes any difference and can give you some insight into the defense. This issue of sending letters to grand jurors has come up in the past from time to time and I don't think there is any law prohibiting it, assuming that the information is just that, information. A defense attorney would have to be an idiot to send anything that could be construed as coercive or threatening.

I have had several defense attorney's present letters to me for the grand jury. One attorney put together a little packet. I don't have any problem with this. If a defense attorney can "get" a no bill by writing a letter, I probably shouldn't be indicting the case to begin with. As noted above, it is also a nice look into defense stategy. I have had one defense attorney write letters to the grand Jurors directly. THEY were not happy and brought it to my attention asking that I let the attorney know that they did not approve of, what they considered, improper contact. They indicted his client.

Just for the record, my practice is not to send my letter to the DA, at least not ONLY to the DA. I generally send a certified letter, return receipt requested, to the foreman of the grand jury (in care of the District CLerk), and a copy to the DA.

I know this sounds paranoid, but this procedure has stood me in good stead so far.

As a further note, I will tell you that my contacts with grand juries, thus far, have been few and far between. But, in my defense, those few contacts have been very successful for my clients.

Later,

Duer

A grand jury is a fairly informally organized body, and I think the historical evidence shows that this is intentional. I welcome any relevant information when presenting a case to a grand jury. Of course, the irritating part of attorney letters is self-serving descriptions and extracurricular adverbs and adjectives, designed sometimes to provide an emotional impact. Just give grand jury the facts. They really do tune out over-dramatization.

And, frankly, I think most defense attorneys, some because their clients contact them too late in the process, underestimate the value of providing evidence during this preindictment stage.

I know of several lawyers who even will proffer their clients for an interview, either by the grand jury or prosecutor, before indictment. I have long thought this is a rather underused opportunity. There is too much in the American system of justice a philosophy that the defense attorney should always work to stop the defendant from talking and hold all cards close until midtrial.

I think most defense attorneys remember the times they've been burned by having their clients talk. They have that image of the fish on the wall with the quote: "The reason I'm here is because I opened my mouth." I think in the few cases in which defendants really have something to tell the grand jury it tends to benefit them but that would be true during the police investigation as well.

I agree with John. If the defendant has a truly believable defense he can sometimes save himself an indictment and trial by testifying in the grand jury. Had a guy who killed two people in a bar fight no billed once because he came in and told the story in grand jury. Turns out it really was self defense but it was hard to believe without hearing firsthand.