In Part One of my blog post on the investigation of child sex offenses in McKinney, Plano, Dallas, Denton, Frisco, Ft. Worth, Sherman, and Rockwall, I discussed how police begin these investigations, how they make an arrest, and matters related to bonding out of jail. In Part Two, I will discuss the next phases of child sex abuse allegations, which include the grand jury process and the initial court dates.
How does a felony charge become a felony case in a district court? All felony charges must be presented to and indicted by a grand jury before the charge can proceed to court. That is a valuable right guaranteed by the 5th Amendment to the United States Constitution, and Article I, Section 10 of the Texas Constitution. The right to be indicted by a grand jury can be waived, but that is rarely done in serious cases involving allegations of sexual crimes against children, and almost always a mistake.
In fact, most of our constitutional rights can be waived. For example, we enjoy the 5th Amendment right to remain silent, commonly known as Miranda rights, but that right can be waived. (Free advice: don’t say a word to anyone about the accusation without first consulting an experienced criminal defense lawyer first!).
The grand jury is organized by a district court judge who retains supervisory power over the grand jury. See Article 19 of the Texas Code of Criminal Procedure. The grand jury consists of 12 citizens. The grand jury must have 9 of the 12 members present to hear and vote on cases. It takes a minimum of 9 votes for a charge to be indicted. So, what happens if only 9 grand jurors are present and one of them votes “no.” That means the charge is not indicted, also called a “no bill.” Prosecutors can resubmit the charge to the grand jury for another vote, but that rarely happens and usually only when new evidence has surfaced.
While a district court judge organizes and supervises the grand jury, in practice, once the district judge administers the oath of office to the grand jurors, the prosecutor takes it from there. The prosecutor is in “charge” of the grand jury, acting as the gatekeeper who decides which cases and evidence the grand jury hears. Grand juries can conduct their own investigations independent from the prosecutor, but that rarely happens in the North Texas Counties of Collin, Dallas, Denton County, Rockwall, Grayson, Fannin, and Hunt.
Former chief judge of the New York State Court of Appeals, Sol Wachtler, famously said that prosecutors have so much influence over grand juries that, “by and large” they could get them to “indict a ham sandwich.” How can that be? First, Article 20.02 of the Texas Code of Criminal Procedure says that grand jury proceedings are secret; so the public, the accused, and the defense attorney don’t know what’s going on. Second, the accused has no right to appear before the grand jury. Third, the prosecutor generally decides what the grand jury hears about a charge.
Perhaps most importantly, grand juries are not deciding whether someone is “guilty” or “not guilty,” but whether there is “probable cause” to indict the charge. In other words, grand juries must believe that the accused “probably” did the crime. That is a much lower legal standard than the proof required for a regular (or petit) jury to convict someone, which is “proof beyond all reasonable doubt.” Anyone who was ever found “not guilty” of a felony charge was first indicted by a grand jury. So all hope is not lost if the grand jury indicts.
Some people charged with sex offenses against children want to proclaim their innocence; they want to tell the grand jury that they didn’t do it. It is up to the prosecutor whether the accused can testify before the grand jury, which is to say that the accused does not have a constitutional right to speak to the grand jury.
An accused who does go before a grand jury does so without defense counsel present. The defense lawyer cannot go inside of the grand jury room (with extremely rare exceptions). So that means the prosecutor gets to cross-examine the accused without defense counsel present. Not a smart idea. Also, grand jurors can ask questions.
Most grand jury proceedings are not recorded, but the law specifically says that the testimony of the accused must be recorded. See TX Code of Criminal Procedure Art. 20.012. That means the prosecutor can use the accused’s grand jury testimony against him at trial.
This all sounds bad, right? How can a person charged with a sexual offense against a child let the grand jury know that he/she is innocent? Short answer: by delivering to the prosecutor a packet of information for consideration by the grand jury.
In Collin County, and most counties in the Dallas-Ft. Worth area, prosecutors accept information from defense attorneys for consideration by the grand jury. This is usually referred to as a “grand jury packet.” What is in a grand jury packet in cases involving allegations of sexual assault or abuse of a child? Here are a few examples:
- 1. A letter from defense counsel stating relevant facts and making legal arguments.
- 2. Results of polygraph examinations.
- 3. Statements from witnesses to the accusation, or people who have information about the complaining witness’ reputation for honesty and behavioral history.
- 4. Text messages, phone recordings, phone records, emails, letters, cards, etc.
- 5. Reports from psychologists or psychiatrists or sex offender counselors who have evaluated the accused and found that he/she does not fit the profile of a sex offender.
- 6. Photographs of the accuser and/or the accused.
- 7. School transcripts and work records.
- 8. Letters of support and character references.
- 9. Letter of non-prosecution signed by the complainant and/or the complainant’s parents/guardians.
- 10. Employment records, military service records, and medical records.
- 11. Many other case specific items.
Grand juries can consider things which would be inadmissible in court. Grand juries are supposed to act as a buffer protecting the citizenry from the accusatory power of the government. Grand juries do reject or “no bill” child sexual abuse cases investigated by police departments in McKinney, Plano, Dallas, Allen, Denton, Frisco, Ft. Worth, and Rockwall. Not all charges are no-billed, but knowing what to include or exclude from a grand jury packet is essential to maximizing the chances of a favorable outcome.
It is also important to keep in mind that grand juries can indict for lesser charges. So, for example, a person may have been arrested for aggravated sexual assault of a child, but after hearing evidence, the grand jury could find that the appropriate charge is something less serious, like sexual assault of a child (not aggravated), or indecency with a child. Any of these charges is terrible, but the lesser the charge, the better the starting place for a vigorous defense.
If the grand jury indicts a charge it returns what is called a “true bill of indictment.” An indictment is the official document which charges a felony offense. The indictment informs the accused of the charge and states what the prosecution must prove in court. The prosecutor must prove the words in the indictment beyond a reasonable doubt, so carefully reviewing the indictment for defects or errors is critical to a good defense.
If the grand jury indicts, the indictment is filed with a district court. The clerk of the court then sets up an initial court date. The accused must attend all court dates unless specifically excused by the judge. At the first few court dates, defense counsel meets with the prosecutor and obtains information about the case, such as police reports, witness statements, video interviews, forensic reports (like DNA, fingerprints, etc.).
At some point in the court process, usually at one of the initial court dates, the prosecutor will make a plea bargain offer. It is the duty of defense counsel to communicate all plea bargain offers to the client. The client should ask questions about the offer to fully understand it. Whether to accept or reject a plea bargain offer is the client’s decision alone. No one can or should try to force the accused into accepting an offer. Deciding whether to accept or reject a plea bargain offer is a decision that can only be made after a thorough review of all of the evidence provided by the prosecution, and after an in-depth investigation by the defense. The defense cannot merely rely upon the investigation done by the police.
If the client rejects the plea bargain offer, the case will be set for jury trial. It is common for the prosecution to make new plea bargain offers as the trial date approaches. Prosecutors sometimes put deadlines for accepting plea offers too.
Being accused of a sexual offense against a child in McKinney, Plano, Dallas, Denton, Frisco, Allen, Ft. Worth, and Rockwall is a terrifying and life-changing event. However, relying on the advice and guidance of an attorney with success and experience handling these types of cases can make all the difference. Contact criminal defense trial attorney Keith Gore as soon as you suspect the police or Child Protective Services (CPS) have initiated an investigation for sexual assault allegations in Collin County or anywhere else in the Dallas-Ft. Worth metroplex.