How many bites at the apple does the prosecutor get?
Headlines today read, “Cleared once, man will once again face charges in Fort Worth officer’s shooting” and “Tarrant County District Attorney refiles charges after Grand Jury no bills shooting suspect.” The headlines highlight the fact that it seems almost un-American to have a person face the same charges twice. Instinctually something seems wrong. Should further prosecution be barred by Double Jeopardy or Collateral Estoppel? This article explores what re-presentment to a grand jury is and whether Double Jeopardy or Collateral Estoppel apply to this situation.
What is a grand jury?
Let’s start with a quick primer on what a grand jury does. A grand jury is a group of 12 citizens who determine whether or not probable cause exists. At least nine must be present for a quorum. The identities of the grand jurors are kept secret so they can operate independently of any outside pressures. (By way of comparison, judges and district attorneys are elected in Texas.) If the grand jury determines probable cause exists, they vote to “True Bill” the case. If at least nine grand jurors do not vote to True Bill or indict the case, the case is “No-Billed.”
What is a True Bill and a No Bill?
If the Grand Jury believes it needs more evidence, it can request the prosecutor to bring that evidence or witness to them for their consideration. The Grand Jury also has the power to issue Grand Jury Subpoenas. Finally, a prosecutor can ask the Grand Jury not to vote if the prosecutor wants to bring more witnesses to the Grand Jury to testify. Given the low level of proof (probable cause) and the control the prosecutor has over which grand jury the case is presented to, what witnesses are called, and what evidence is presented, you often hear the adage. “A grand jury could indict a ham sandwich.” If you stop and think about it, the grand jury is making the same probable cause determination that the arresting officer, a filing detective, a reviewing prosecutor, and a magistrate judge has already made. Needless to say, obtaining a No-Bill at the Grand Jury is an exceptional result, and a rare one.
Can the prosecution re-present to grand jury after the case is no-billed?
Just this year our firm has represented an individual who was no-billed…twice. The case was first presented to the grand jury and no-billed after we presented additional facts to the grand jury. The prosecution then re-presented the case to the grand jury at a later date. That second presentment to the grand jury also resulted in a no-bill after defense presentation. The case was then re-presented and no-billed again. To their credit, many District Attorney’s Offices, including the Tarrant County District Attorney’s Office, allow defense presentations to the grand jury in an effort to encourage transparency and fairness in the grand jury process. Theoretically, a rogue prosecutor could prevent the defense from making any presentation or providing any evidence to the grand jury.
While obtaining two no-bills on the same case against the same individual within a matter of months is incredibly rare, there is no limit on the State’s ability to continue to present the same case to the grand jury to obtain an indictment.
Re-Presentment to Grand Jury
The Court of Criminal Appeals has ruled that a no-bill is a finding that the specific evidence brought before the grand jury did not convince the grand jury to formally charge the accused with the offense alleged. The prosecutor is not limited from presenting new or additional evidence to that or another grand jury to seek an indictment after a no-bill.
Is Re-presentment Barred by Double Jeopardy?
The Double Jeopardy Clause of the Fifth Amendment provides that no person shall be put in jeopardy of life or limb for the same offense twice. Jeopardy attaches in a criminal case when a petit (trial) jury is empanelled and sworn. It does not attach at the grand jury level. Therefore, re-presentment is not barred by double jeopardy. See Garza v. State, 658 S.W.2d 152, 155 (Tex.Crim.App. [Panel Op.] 1982)
Is Re-presentment Barred by Collateral Estoppel?
Collateral Estoppel bars the reintroduction or relitigation of facts already ultimately established by a previous verdict. Presentment to a grand jury and their determination to no-bill or true bill a case is not an ultimate finding on any fact so re-presentment is not barred by collateral estoppel. See State v. Comerford, 787 S.W.2d 163, 165 (Tex.App.—Amarillo 1990, no pet.)
Can a prosecutor decide to present to another grand jury?
Besides the statute of limitations for an offense, there is nothing preventing a prosecutor from presenting to another grand jury in the same term. They can also wait for a new grand jury to be seated in a subsequent term.
Why do cases get no-billed when the prosecutor seeks a true bill?
This can happen for any number of reasons: the prosecution may have misevaluated the case, the defense may have presented compelling evidence against a True Bill, witnesses who testified at the grand jury may not have been credible; the list goes on. All of these reasons ultimately boil down to one thing: the grand jury determined that based on the evidence presented to them, probable cause did not exist to believe the accused was criminally responsible.
Is the prosecutor threatening to present your case a second time to a grand jury in North Texas? Call us at 817-203-2220 or online:
Also published on Medium.