Anyone know anything about the two lawyers indicted for misuse of official information in Kerr County after they contacted members of a previous grand jury? I checked the local newspaper and it hadn't hit there - but was at the top of a Texas Lawyer e-mail.

A few years ago, the now former DA in Fort Bend County was investigating a Sheriff and turned over a record of some grand jury testimony to a local newspaper. The record was published.

Citizens sued to remove the DA from office for violating the secrecy of the grand jury. A jury, the local district court, and the court of appeals all agreed that the actions of the DA to violate the privacy of a grand jury merited the removal.

Shortly after that case, the secrecy requirement, which had been largely accepted under common law, was codified with more specificity in the Code of Criminal Procedure. The bottom line is that you can't invade the privacy of the grand jury as to deliberations or testimony without an order from the grand jury's judge releasing the information.

In the case you mention, the article in Texas Lawyer does not indicate the lawyers made any attempt to obtain a court order releasing them from the privacy restriction. So, when they contacted (through a third person) grand jurors and obtained information that was secret, they could well have violated ethical and penal laws.

Protecting the secrecy of the grand jury is a serious matter. I spend quite a bit of time at the beginning of each new grand jury term educating the jurors and reminding the prosecutors of the obligations we all have under the law.

... and TDCAA members have had to spend time every legislative session protecting the confidentiality of grand jury proceedings against attacks on various fronts ...

I was having lunch with a couple of other lawyers who were not employed with me at the DA's office. One of my previous grand jurors approached me and discussed the Grand Jury. I advised her that I was uncomfortable discussing this (as we were in a large crowd, and I was seated with other people) because the Grand Jury proceedings were confidential. She advised me that she was advised by(name deleted, well respected attorney, person in charge) that once the Grand Jury was over, the secrecy was removed. Not only me, but the two lawyers with me advised her that the secrecy cannot be broken. She was shocked.

In some states, grand jury secrecy does end with the conclusion of the grand jury term. Texas has not taken that approach. The only way to break the secrecy is by obtaining a court order from the judge who headed the grand jury term.

John I agree with everything you have said on this thread - but how did they get the names of the grand jury members to contact? Having been the grand jury prosecutor for most of the last five years, I have found it worth my while before, during and at the conclusion of the term to reimind members of the secrecy provisions. Short of a 19.42 finding of good cause - how did the attorneys know who to contact and what were they looking for?

I can't really tell from the Texas Lawyer article. But, I don't know that the names of the grand jurors are secret. In addition, the article seems to imply that there was some sort of deposition involving the grand jurors before this came about. And, at least one grand juror -- the foreman -- appears as a signature on the indictment.

[This message was edited by John Bradley on 08-04-03 at .]

Art. 19.42. Personal Information About Grand Jurors

(a) Except as provided by Subsection (b), information collected by the court, court personnel, or prosecuting attorney during the grand jury selection process about a person who serves as a grand juror, including the person's home address, home telephone number, social security number, driver's license number, and other personal information, is confidential and may not be disclosed by the court, court personnel, or prosecuting attorney.

(b) On a showing of good cause, the court shall permit disclosure of the information sought to a party to the proceeding.

I think the names, at least, and probably the addresses are available from the treasurer's office, since the Grand Jurors get their pittance for their work. Public expenditures are public record as far as I know.

I read in the Texas Lawyer that the Hon. Judge John Delaney of Bryan, now retired, is presiding over that case and that they had some sort of hearing or appearance scheduled for August 5th?
I had the priviledge of trying a case in front of Judge Delayney several years ago when I did a stint as a special prosecutor, and he is a fine jurist.

As I understand it, one key issue will be determining whether a grand juror whose term had ended is a "public servant". Two big time lawyers from Houston are involved representing the civil lawyers, so it ought to be interesting.

How about an update from someone in that neck of the woods.

We have a civil suit in Lubbock and the plaintiff is trying to get at Grand Jury proceedings. Plaintiff was indicted for insurance fraud. In preparing for trial, one of our trial prosecutors determined she could not prove the case beyond a reasonable doubt & dismissed it. Plaintiff is now suing insurance company, saying they pushed this & got an indictment on no probable cause.

I got subpoenaed, as did our records (we're moving to quash). Plaintiff's lawyer seems to not understand the difference between probable cause and proof beyond a reasonable doubt.

I explained to the lawyers for the insurance company, the indictment itself is a finding of probable cause. An indictment never guarantees a later finding of guilt, nor does it mean the case will even go to trial and all indicted cases could end up being dismissed for insufficient evidence later on.

Didn't Judge Delayney quash the indictment?

Yes, on the ground that Sec. 39.06 is unconstitutionally vague. The special prosecutor has indicated he will seek to have the ruling reviewed.

Trey, while the return of an indictment creates a presumption of probable cause, this presumption may be rebutted with evidence that the indictment was secured by fraud,perjury, the suppression of evidence or other bad faith police conduct. And furthermore, probable cause for an arrest is not necessarily enough to justify prosecution. See Boyd v. City of New York, ___ F.3d ___ (2nd Cir. 07/15/03). So you may indeed find yourself facing a particularized need exception under art. 20.02(d)-(g). But a subpoena asking you to disclose grand jury proceedings prior to such a finding would obviously be premature.

Having lived and worked in and around Kerrville, all you have to do is ask around the local coffee shop to know who is serving on the grand jury. It's still small-town USA.

Trouble is, the proceedings in this case were not recorded, because the defendant ignored his invitations to Grand Jury. Without violating my own oath, let me explain. I think the indictment may be the result of not enough information got to the Grand Jury, rather than anybody monkeying with, or manufacturing information. I imagine we've all had Grand Juries indict cases, which turned out to be crappy later, when we get new, or more thorough information. This is not a new phenomenon.

The trial prosecutor, who dismissed, told me she did so, because the conduct of defendant observed by the witness could not be pinned down to a specific date (i.e. before, or after the insurance claim was made) and because what the witness saw defendant doing could have been merely replacement of the stolen items, rather than defendant removing the items & then reporting them stolen. This is why the case was dismissed.