Posted By Houston Criminal Defense Lawyer on Jul 2, 2012 12:00pm PDT
Defense attorneys are always faced with the conundrum of whether to present their client to the Grand Jury. The lawyer can’t be in the room with the client, and there is no control over the questions asked. A grand juror, or the Assistant District Attorney, can venture off into any area of interest. It is rare indeed when criminal defense counsel considers this a good deal, even with an innocent client. In fact, I’ll go so far as to say, especially with an innocent client!
On the other side, most Defense attorneys think it’s always a good deal to present information to the Grand Jury. That is to say, controlled information. Keep the bad out and provide the good – what could be wrong with that? Many good defense attorneys will provide packets of information, along with a letter to the Foreman, providing reasons why their client shouldn’t be indicted. Seems innocent enough, and sometimes it actually works, especially with a cooperative Assistant D.A.
But danger lurks! Let me explain, and I think it best for me to do it by example. Last week I represented a businessman in Ft. Bend County who was accused by an employee of rape. She claimed two incidents of rape, a month apart. Her story was bull@&*%, but all it takes is an allegation and the ball starts rolling. I had no idea what the D.A.’s take on it was, but I was given the opportunity to provide information to the Grand Jury.
My client had passed a polygraph, and I certainly wanted to get this out. We also had a number of witnesses who provided statements that the accusation made was wholly inconsistent with the complainant’s actions at the time of the alleged rapes. The accusation was made months after the alleged rape, and I wanted to highlight this in case the jurors missed it. But I had a problem.
It turns out that I had substantial information about the veracity of this complainant. I knew that she had made accusations about others in the past. She was also illegal, and was probably aware of the Violence Against Women Act that allowed protection for those with illegal status after an allegation of domestic violence or rape. I had cell records, which showed numerous phone calls to my client after these supposed forced sexual encounters. And I had evidence that the complainant had attempted to blackmail my client by threatening to go to the police and accuse him of rape.
So what’s the problem? All good defense attorneys know that no matter what contrary evidence exists, a Grand Jury indictment is easy if the Prosecutor is hell bent on getting that indictment. They are the sole presenters, and it is extremely rare for a Grand Jury to contradict the prosecutor’s wishes. By providing all the information the defense has, especially evidence that relates to the complainant’s veracity, it is guaranteed that the prosecutor will have that information at the time of trial. This gives them the opportunity to clean it up.
The Moral? Unless an attorney is absolutely sure of the prosecutor’s intentions, it may be best to leave something back. A lawyer who has the future of a client at stake, needs to mentally fast forward to trial. Losing the Grand Jury battle, is not losing the war. In this case, I kept the stuff from the Grand Jury that I thought I would use on cross-examination. Fortunately, I didn’t need it. They no-billed. I called my client when I found out and told him the nightmare was over. He cried and thanked me. Right decision this time and one more life saved.