Wednesday, December 21, 2011

Legislators put teeth in Grand Jury secrecy

When true bills of indictment are returned to District Clerks, most of the alleged offenders have already been released on bond.

Their legal entanglements are already a known fact, so they are expected to appear at the Sheriff's Office to arrange a post-indictment bond.

Those who have been indicted in secret, however, are yet to be apprehended by lawmen.

The most recent session of the Texas Legislature made a move to make dead sure they don't find out they're wanted and get the foreknowledge to run from their troubles with the law.

Jurors, witnesses, lawmen, and prosecutors are sworn to secrecy in these matters, as well as court clerks.

On September 1, an amendment to Section 20.22 of the Texas Code of Criminal Procedure took effect. Where before the law read in this way, “If the defendant is not in custody or under bond at the time of presentment of indictment, the entry in the record of the court relating to indictment shall be delayed until the capias is served and the defendant is placed in custody or under bond,” the legislators tweaked the language slightly by passing HB 1573.

Now, it says “If the defendant is not in custody or under bond at the time of the presentment of indictment, the indictment may not be made public and the entry in the record of the court relating to the indictment must be delayed until the capias is served and defendant is placed in custody or under bond.”

A very fine distinction, but oh, so exacting, this means specifically that there will be woe unto he or she who lets it slip that an indictment has been returned and an unaided capias warrant of arrest is on file in the Sheriff's Office and on the NCIC computer hookup local, state and federal. Before, it was regarded as a matter of confidentiality, something that just wasn't done if you wanted to play nice.

Times, crimes and their consequences have changed.

According to McLennan County District Clerk Karen Matkin, “The change was that simply if the accused had not been arrested, the information could not be divulged that a capias was on file until the arrest was effected...However, there was no prohibition to making the accused offender aware the presentment had been recorded. Now, the information is delayed until the capias has been served.”

What violation of the law is involved?

Let's start with contempt of Court, since the Grand Jury has been convened by a District Court, the evidence presented to the Grand Jurors, and a minimum of 9 out of 12 having voted to present a true bill of indictment.

To forewarn and inform a defendant that he's hot as a ten dollar pistol and needs to get out of Dodge is a real no no in the eyes of the black-robed brethren of the law. Contempt citations are extremely costly to legal careers, political aspirations and pocketbooks. Balky witnesses may be ordered to sit out Grand Jury terms in the inhospitable atmosphere of the county lockup, the terms extended - and thereby doubled - while the errant party contemplates whether it's really worthwhile to shield which little bird told them all that stuff about who's hot and who's not.

In any case, a violation of this type would definitely be viewed with a jaundiced eye as an example of moral turpitude classed with stealing.

The rest of the procedural code concerning the nature of the instrument remains the same. Each and every allegation of complaint must be enumerated and listed in the presentment so that prosecutors will be bound to prove up each and every element of the alleged felony crime. If the offense involves a degree of culpability based upon intent to act in a felonius manner, each particular must be listed, as well as all counts of the offense.

The law is very exacting because savvy defense attorneys know just how to persuade trial courts to suppress evidence that is based on faulty presentments of complaint, how to plead down offenses to lesser charges because of improper allegations of complaint, and how to get entire criminal cases dismissed without ever having to pick a jury or call witnesses.

In the opinion of a number of jurists who were good enough to answer a quiz by The Legendary, nothing is really changed. Ditto a number of District Clerks and Deputy District Clerks contacted, as well as investigators and harness bulls behind the badge.

What happens in the Grand Jury room stays in the Grand Jury room until the defendant has been served with a writ of capias – so called from the original Latin meaning “thou mayest take” a named individual under arrest.

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