In re Grand Jury Proceedings 198.GJ.20--Appeal from 198th Judicial District Court of Kerr County

DISSENTING OPINION
No. 04-02-00402-CV
IN RE GRAND JURY PROCEEDINGS 198.GJ.20
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. 02-171-B
Honorable Stephen Ables, Judge Presiding

Opinion by: Karen Angelini, Justice

Dissenting opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: June 18, 2003

The Texas Constitution prohibits a person from being held to answer for a criminal offense punishable by imprisonment in a penitentiary "unless on indictment of a grand jury." Tex. Const. art. I, 10. The question in this case is whether the state constitutional right to an indictment by a grand jury requires the prosecutor to present exculpatory evidence to the grand jury. The answer to this question must take into consideration that "the primary duty of all prosecuting attorneys" is "not to convict, but to see that justice is done." Tex. Code Crim. Proc. Ann. art. 2.01 (Vernon Supp. 2003). This statutory duty prohibits prosecuting attorneys from suppressing facts or secreting witnesses "capable of establishing the innocence of the accused." Id.

The majority's opinion rejects the majority view among the states that prosecutors have a limited duty to present exculpatory evidence to grand juries. Instead, the majority accepts the federal no duty rule without analyzing whether a defendant is entitled to greater protection under the Texas Constitution and Texas laws. See Bauder v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996) (adopting more expansive conditions with regard to double jeopardy under state law). The majority cites as support the global assertion by the Houston court in Matney that the State generally does not have a duty to present exculpatory evidence to a grand jury. See Matney v. State, 99 S.W.3d 626, 629 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

In Matney, the appellant was charged with aggravated perjury after testifying that her husband was the only person that could possibly have caused her to conceive one of her children. 99 S.W.3d at 627. Later, the appellant admitted to having had extramarital affairs with two men during the time the child was conceived. Id. The appellant identified one of the men as Ralph Gaitan, but she could not identify the other man. Id. at 627-28. The exculpatory evidence was a DNA paternity test that excluded Gaitan as the possible father. Id. at 629. Although the Houston court noted the general no duty rule, citing Williams for support, the basis of the court's holding was that the exculpatory evidence did not make the appellant's statement that her husband was the only possible biological father of her child true. Id. This holding does not exclude the possibility that the Houston court might adopt a limited duty to present exculpatory evidence in a case where the evidence would establish a defendant's innocence.

In my opinion, the better reasoned analysis with regard to a prosecutor's duty to present exculpatory evidence to a grand jury is contained in State v. Hogan, 676 A.2d 533 (N.J. 1996). In that case, the court analyzed the three state views and declined "to adopt any rule that would compel prosecutors generally to provide the grand jury with evidence on behalf of the accused." Id. at 541-42. In adopting a limited duty, however, the court noted:

Although the grand jury is not the final adjudicator of guilt and innocence, the presence of the right to indictment in the State Constitution indicates that the grand jury was intended to be more than a rubber stamp of the prosecutor's office. Our State Constitution envisions a grand jury that protects persons who are victims of personal animus, partisanship, or inappropriate zeal on the part of a prosecutor. In order to perform that vital protective function, the grand jury cannot be denied access to evidence that is credible, material, and so clearly exculpatory as to induce a rational grand juror to conclude that the State has not made out a prima facie case against the accused. If evidence of that character is withheld from the grand jury, the prosecutor, in essence, presents a distorted version of the facts, and interferes with the grand jury's decision-making function.

Id. at 542-43 (citations omitted).

The reason for adopting a limited duty is best exemplified in this case where Shields was charged with aggravated sexual assault of a seven-year-old girl. See State v. Gaughran, 615 A.2d 1293, 1296-96 (N.J. 1992) (dismissing indictment in sexual assault case in which prosecutor failed to present exculpatory medical evidence to the grand jury). Although the indictment has been dismissed, the stigma of the charge and the doubts raised in the minds of those around him cannot be erased. As Justice Stevens stated in his dissenting opinion in Williams:

[W]hile in theory a trial provides the defendant with a full opportunity to contest and disprove the charges against him, in practice, the handing up of an indictment will often have a devastating personal and professional impact that a later dismissal or acquittal can never undo. Where the potential for abuse is so great, and the consequences of a mistaken indictment so serious, the ethical responsibilities of the prosecutor, and the obligation of the judiciary to protect against even the appearance of unfairness, are correspondingly heightened.

United States v. Williams, 504 U.S. 36, 63 (1992) (Stevens, J., dissenting) (quoting United States v. Serubo, 604 F.2d 807, 817 (3rd Cir. 1979)).

In this dissent, I do not explore the scope of the limited duty that I would impose on prosecutors. I simply note that prosecutors should have a limited duty to present exculpatory evidence to a grand jury for several reasons, including: (1) a defendant's state constitutional right to a meaningful indictment; (2) a Texas prosecutor's statutory duty to see that justice is done; and

(3) a Texas prosecutor's statutory obligation not to suppress facts. Because the majority holds to the contrary, I respectfully dissent.

Alma L. L pez, Chief Justice