Harris County Grand Jury News Parts One and Two

 Posted on January 07, 2012 in Uncategorized

One:

Murray Newman reports that Pat Lykos has been subpoenaed to testify before the 185th Grand Jury.

My guess is that it's unprecedented for a Texas grand jury to subpoena a sitting District Attorney.

Getting subpoenaed is bad. Taking the Fifth would be political suicide. Others might take the Fifth as an obstruction or delay tactic, but if Pat Lykos takes the FIfth, it's because she really means it.

Two:

Newman also brings us this email from Jim Leitner to the rest of the DA's Office:

-–Original Message--From: Leitner, JimTo: All DA EmployeesSubject: Grand Juries for the November Term 2011Sent: Jan 5, 2012 9:43 AMI have just been notified that the Judges have terminated all Grand Juries that were empanelled for the November Term 2011. That termination, from what I understand, has been backdated to December 31st. Therefore, do not take any cases in to any Grand Jury until the Judges have created and sworn in Grand Juries for the January Term 2012. Also, don't issue any Grand Jury subpoenas until we have new Grand Juries empanelled. I am meeting with Judge Hill today to make sure that we have the right information on this, but until you hear otherwise proceed as if there are no Grand Juries available until the new term Grand Juries are sworn in. This does not affect the 185th or 232nd Grand Jury which have been extended for pending investigations. Jim

Murray rightly points out that, given the circumstances under which the grand juries were terminated (new statute as of 1 September that set terms for grand juries conflicting with existing grand juries' terms and might have led to challenges to indictments handed down by previously constituted grand juries), The Harris County DA's Office's management should have planned ahead for this eventuality.

(Possible solutions: get the district courts to explicitly extend the terms of more grand juries, as they did with the two investigating DA misconduct; get the judges sometime between September and December to form new grand juries to begin 1 January; or warn line prosecutors in October 2011 that there might not be a grand jury sitting for a week or so at the beginning of 2012.)

Murray also sounds the alarm about "a danger to the public" resulting from the lacuna in grand-jury coverage:

When a person is arrested and incarcerated prior to trial, the District Attorney's Office has 90 days to get that case indicted. Otherwise, the person accused is entitled to a bond they can make.That applies to all felony charges - from Aggravated Sexual Assault to Aggravated Robbery to Murder. If the deadline goes past the 90 days, the end result is those folks will be getting back out on the street......The trial prosecutors are about to find out that if they were banking on going to the Grand Jury this week or next, that they are not going to be able to do so.And some really bad people are potentially about to be back on the streets.

Paul Kennedy says, "So freaking what?"

So the state's ability to infringe upon the freedom and liberty of its citizens is curtailed. So someone who might not otherwise qualify for bail in Harris County gets to spend some time with his family. What's the problem, Murray?We're criminal defense attorneys. Our job is to defend the Constitution. Our job is to make it harder for the state to take away someone's freedom. It just so happens that Ms. Lykos may have done part of our job for us. Bully, I say.

I mostly agree with Kennedy. (Only "mostly" because even criminal-defense lawyers live in the community. Our job is to make it harder for the state to take away the client's freedom; this doesn't necessarily extend, in general principle, to making it harder for the state to take away people's freedom. Even the best criminal-defense lawyer might reasonably think that some (non-client) people need to be locked up.)

But people charged with crimes in Harris County are routinely held illegally without bail, and routinely incarcerated in lieu of punitively high bail that has no objective basis in flight risk or danger to the community. The law often supports high bail, but common sense doesn't. Most of those who might get out on bail because of the government's delay don't need to be in jail anyway.

One solution to the problem Murray sees would have been for Lykos to warn line prosecutors in October 2011 that there might not be a grand jury sitting for a week or so at the beginning of 2012. But here's the thing: Lykos is not the smartest lawyer in the DA's Office. ("Lateral Hire" Lana Shadwick is. No, just kidding.) Prosecutors other than Pat Lykos knew last year that their might be problems with grand juries continuing after the end of December-they commented on it on Murray's blog in talking about the 185th Grand Jury's investigation.

So there were others in the DA's Office who might have been in a better position than Lykos to predict that there would be some grand-jury problems at the beginning of 2012; like her, they didn't do anything about it. A lot of balls got dropped.

I suspect that some of Murray's shrillness might be a result of his political support for Pat Lykos's opponent in the upcoming Republican primary. But while the failure to anticipate some hiccups in the grand-jury system is not a credit to Pat Lykos, it's just as much a discredit to those line prosecutors who were "banking on" going to the grand jury this week.