Tarrant DA breaks protocol in latest officer-involved shooting. What will happen next?

Duplicity in Prosecution or Politics as Usual?

In recent days, Tarrant County District Attorney Sharen Wilson has publicly stated that her office plans to pursue a murder indictment against former Fort Worth Police Officer Aaron York Dean in the shooting death of Atatiana Jefferson.

“We have completed an initial review of the case, and based on the evidence we intend to ask the Grand Jury for an indictment of murder against Aaron Dean,” Tarrant County Criminal District Attorney Sharen Wilson said in a recent statement to the media. “We will prosecute this case to the fullest extent of the law.”

While many in the community applauded this quick decision, the pronouncement of her intentions inside the grand jury room have raised the eyebrows of local attorneys and courthouse observers - especially since it is out of line with her current protocol and past handling of other officer-involved shootings. 

Tarrant County Law Enforcement Incident Team (LEIT)

All officer-involved shootings in Tarrant County are supposed to be handled by the Law Enforcement Incident Team (LEIT) of the Tarrant County District Attorney’s Office. The Unit is made up of two former police officers who are now prosecutors within her office.

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Tarrant County District Attorney LEIT Protocol

The protocol for LEIT investigations is outlined very specifically and states the LEIT will “present all cases thoroughly and neutrally...to ensure that the grand jury has all the facts and law needed to reach a just decision.”

 “LEIT will not make a recommendation to the grand jury about whether or not to seek criminal charges in any LEIT case,” the protocol states.

LEIT Protocol Broken

Clearly, the DA’s announcement that prosecutors intend to ask a grand jury for a murder indictment goes against the very protocol that this District Attorney put into place after taking office.

It is also a departure from how every other officer-involved shooting has been handled by her office. In the past, officer-involved shootings were taken directly to a grand jury prior to the officer’s arrest. In other words, the officer was only arrested after a grand jury returned an indictment – if they did. In most cases, the grand jury no-billed the officer. 

In this case, Officer Dean was arrested and formally charged by the DA with murder just days after the shooting. The speed with which he was charged begs the question of whether the DA’s Office completed the independent investigation outlined in the "Protocol for Law Enforcement Incidents" developed by her office. 

The Grand Jury Process in Texas

The grand jury process has always been a secretive proceeding that is closed to the public and defense attorneys. In Texas, a grand jury is a body of 12 people who are “randomly selected from a fair cross section of the population.” The identities of the members of the grand jury are kept secret so they can operate independently of any outside pressures. 

The goal of the grand jury is to hear criminal complaints to determine whether probable cause exists and if criminal charges should be brought against the accused. If at least nine jurors vote that a person should be charged with a crime, the case is indicted and proceeds in the criminal process. If not, the case is no-billed, which essentially means the grand jury believes there was insufficient evidence to prosecute someone.

Pursuant to Code of Criminal Procedure Article 20.011, the only people allowed in the grand jury room are the grand jurors, prosecutors, bailiffs and a court reporter. No judge oversees the proceedings.

And while defense attorneys are not allowed in the grand jury room, most Texas counties will allow defense attorneys to submit “grand jury packets” or defendant presentations for the grand jury to consider, if they chose to do so. These packets are presented to the grand jury through the prosecutor.

These grand jury packets could include anything from additional photos and videos, to concerns about the investigation, legal arguments, even polygraph results. These packets allow grand juries to consider more than a prosecutor’s summary in determining whether or not to indict a case.

Experienced and discerning prosecutors prefer for grand juries to have a complete picture of the case, rather than indicting cases that they will ultimately lose at trial.

However, for reasons that are not clear, Tarrant County no longer allows “grand jury packets” or presentations in cases - other than officer-involved incidents resulting in serious bodily injury or death. How cases proceed through the grand jury in Tarrant County depends entirely on whether the accused is a cop or a civilian. In other words, criminal cases involving officers and civilians are handled differently and, in the latest case, the DA has already her violated her own protocol. 

Grand Jury Process in Tarrant County: Difference between Cops and Civilians

In early 2019, the Tarrant County District Attorney’s Office implemented a new policy regarding grand jury defense presentations. The new policy broke not only with decades of tradition in Tarrant County, but also stands in stark contrast to the grand jury policies of other elected district attorneys in Texas.

The new policy states that defense attorneys “will only be allowed to address the Grand Jury in the form of a sworn affidavit or affidavits, executed by a person or person with personal knowledge of the facts alleged in the affidavits. The affidavits will be provided to the Grand Jurors when the case is presented by the State. Defendants wishing to testify may still do so.”

There is, however, a glaring – and little known – exception, which is coming to light now in the wake of the fatal shooting of Atatiana Jefferson by a Fort Worth officer. In cases where the grand jury is considering whether to indict a police officer for a shooting, the defense attorney is provided great leeway in what they can present to the grand jury – and the limitation of “sworn affidavits” is removed.

According to the DA’s Protocol for Law Enforcement, attorneys for involved officers, upon request, will have an opportunity to meet and make a presentation to the DA, the Chief of the Criminal Division and the chief of the Law Enforcement Incident Team (LEIT.)  Furthermore - and distinguishable from attorneys representing civilians - attorneys for the involved officers “will have an opportunity to make a presentation to the grand jury.”

The reason for the disparity in the way cases involving cops and civilians are handled at the grand jury level are unclear.  

No Other DA has an Affidavit-Only Policy

Earlier this year, the Tarrant County District Attorney’s Office did not respond to emails seeking comment or explanation regarding the affidavit-only policy change for civilian defendants.

We also filed open records requests to various district Attorney Offices around the state but could not find another DA’s Office with an “affidavit-only” grand jury policy.

Haley Holik, an attorney on staff with the Texas Public Policy Foundation and its Right on Crime Initiative, said grand jury policies that vary from county to county “underscore the need for statewide reform.”

“Every Texan should be afforded the same level of protection, regardless of jurisdiction,” Holik said.

Laypeople naturally assume that the grand jury has all of the pieces of the puzzle to make that determination, but that is not always the case – and certainly not in Tarrant County anymore.

In Texas, prosecutors are under no legal obligation to present exculpatory evidence to the grand jury– that is, evidence that justify or exonerate a defendant’s actions. A witness or suspect providing testimony to a grand jury is not allowed to have an attorney present inside the grand jury room. And if prosecutors don’t get an indictment, they are allowed to present the same evidence to another grand jury or grand juries without limitation in an effort to obtain an indictment.

To be clear, it is certainly within the discretion of the elected District Attorney to create policies that prohibits most defense materials from reaching the grand jury through the prosecutors. The consequences of that decision, however, are reflected on the Tarrant County District Attorney’s trial board.

It is also within a DA's purview to implement protocols for the handling of officer-involved shootings. Still, implementing a second tier of cases where officers accused of offenses benefit from greater protections undermines the confidence the community has in its justice system and it raises grave concerns about whether every other defendant in the county is receiving due process under the law. 

Prosecutors take an oath to seek justice. Policies that create one tier of grand jury access for officers accused of crimes and another for everyone else make it impossible for prosecutors to live up to their oaths.

Now, whether the DA will follow her own protocol and allow defense attorneys representing former Aaron York Dean case to make a presentation to the grand jury remains to be seen. After all, she has already side-stepped her own procedures in this high-profile case.

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Benson Varghese

Managing Partner at Varghese Summersett PLLC
Benson Varghese is the founder and Managing Partner of Varghese Summersett PLLC. He is a prolific writer and has authored hundreds of articles about criminal law in Texas and at the Federal level. His articles have been featured in the Wall Street Journal, Above the Law, and have been selected as Top Blogs by the State Bar of Texas. He was named the Young Lawyer of the Year in 2019 by the Tarrant County Bar Association. Benson led the firm to become one of the 500 fastest growing businesses in the United States by Inc 500 Magazine in 2018. In the same year, the firm was named the Best Law Firm in Fort Worth by the Fort Worth Star-Telegram. The lawyers at Varghese Summersett PLLC exclusively handle criminal defense matters.
Benson Varghese
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