Wednesday, January 27, 2016

Harris County Indictments -- Smells Like Fish

Go read the excellent independent analysis at American Catholic on the Harris County indictments. But first, the Bear reminds the reader that he, too, used to be a defense hack very reminiscent of Rumpole of the Bailey, his role model in underachievement.

This is all informed speculation, so read and quote at your own risk.

A prosecutor has total control over what the Grand Jury learns and does. Imagine a trial where the defendants are banned, and never get to put on any evidence or argue their case. If Planned Parenthood was not indicted, that's because the prosecutor did not want them to be. "Washing" a defendant through a Grand Jury is a time honored tradition among prosecutors. The prosecutor gets the Grand Jury to return a no bill and that's that. He does not have to take responsibility for the charging decision, but can just shrug and and point to the Grand Jury.

So far, no mystery.

Puzzling Evidence

The Bear is still puzzled over why the prosecutor would want the investigator charged the way they have been. Now, this opens Planned Parenthood to discovery and subpoenas for documents. Someone really must have wanted their pound of flesh, and/or to deter similar investigations in the future. It still seems unwise to the Bear, however. (Although the Bear has a pretty good guess, as you will see.)

This does not necessarily mean that now all Planned Parenthood's secrets will be exposed. Only documents related to the defense of the charges will come out. That might be a lot, it might be a little. The trial judge will be ruling on those motions.

The indictment was for, ludicrously, attempting to purchase human organs, a misdemeanor, and a more serious felony count of altering a government document (drivers license, but more on that, too, later). That's right. Texas believes that it's more serious to create a fake drivers license, something college students do regularly, than to traffick in human body parts. BBQ is off the menu next time the Bear travels to Texas, but his license will surely be in order.

A friend reminds the Bear of this as an example of the political climate in Harris County.
A bit over a year ago, the then Left Wing statist Mayor of Houston, Annise Parker, committed a first in America by subpoenaing the sermons of pastors in the Houston area because she didn't like what they preached on the issue of her force fed ordinance that allowed men to use women's restrooms. 
Early Predictions

Obviously, it's going to be hard establishing the criminal state of mind on attempting to purchase human organs. In fact, it doesn't even pass the straight face test. It would be like prosecuting a rape victim and giving the rapist a pass. The "government document" charge might be more problematical for the defendant, depending on the facts.

It carries a maximum penalty of 20 years (although one would not normally expect anything like that.) And no Planned Parenthood documents would be implicated in the defense, and thus would not be subject to discovery or subpoena. The Bear can think of other scenarios, however, where this would not necessarily be true.

The misdemeanor charge of trafficking in human organs seems really odd. The Bear can see no tactical advantage to adding a (probably) unprovable misdemeanor to a (possibly) provable felony. It's not like they're going to charge bargain, where the defendant pleads to the lower charge of trafficking in human organs and the more serious felony (the drivers license) is dismissed.

It seems weak to the Bear. It is a mystery, unless pure spite is at work, and a taste for irony.

Here's what the Bear bets happens. The misdemeanor charge of trafficking in human body parts gets dismissed some time before trial. It's so weak the State would lose credibility at trial. And now  Planned Parenthood is completely insulated from the case. So no discovery, no subpoenas, no revelations. (Maybe.) And the State of Texas proceeds on the felony, which is a far bigger stick, anyway.

Or does it?


The Bear is not a Texas lawyer, but he plays one on the internet. He found Section 521.451 of the Texas Transportation Code. It says this: "[A] person may not (1) display, cause or permit to be displayed, or have in the person's possession a driver's license or certificate that the person knows is fictitious or has been altered.... An offense under this section is a Class A Misdemeanor."

Or, Section 521.456(B), manufacturing a counterfeit license, is a Third Degree Felony, with a sentence from 2 to 10 years in the Texas Department of Corrections. (Also conspiracy carries a sentence between 180 days to two years.) Query -- how many times has this prosecutor charged a 19 year old college student with a 20-year felony because he makes a fake drivers license so he can get into bars? The reelection prospects of a DA whose office did that would be nil.

Now, normally, if a law specifically covers an offense, a person is charged under that specific law, not some far more serious and general law. If two laws cover the same matter, they must be read in pari materia, i.e. together. One would hope that a specific fake license statute would "eat up" a general government documents statute. The government documents charge is a square peg in a round hole anyway. It is more for altering things like court records, school records, etc. Not drivers licenses.

Which one of these drivers license charges might apply to this case, the Bear does not know. As he said, this is all informed speculation, and not as informed as speculation by an experienced Harris County, Texas criminal defense lawyer would be.

Overcharging is a common tactic by prosecutors. They hold the big stick, but agree to substitute it with a smaller stick, i.e. lesser charge, in return for a guilty plea. But it would seem that there are other specific drivers license charges. It is doubtful the prosecutor ever even informed the grand jury of those lesser offenses, but just got them to sign off on the most serious felony imaginable.

Another wrinkle is that, under the right circumstances, a defendant can have "lesser included offenses" placed before the jury at trial. That means the jury could determine that the defendants have broken a less serious law than the one charged by the State. Beyond that, it is too complicated to go into here, but the Bear thought it worth a mention.

But if this gets to trial, the prosecutor loses a great degree of control. That's why defense counsel seldom think it is a good idea to go to trial, although there are the occasional meth-addled client who insists, or innocent client, or nothing-to-lose client. And when the Bear was a prosecutor, he was never sure of winning, even with a case that seemed rock solid.

Welcome to the Bear's career.


  1. Fwiw I suspect that pure spite is, indeed, at work.

  2. Bear can tell you the outcome. Well, not really, but... State drops the misdemeanor (body parts) fairly early. The "Altering a government document" gets reduced one way or another. Assuming the State can prove that, let's say we're looking at 2 - 10 years on manufacturing a fake license. In defense, it's all about downside protection. So what is the State wiling to give in that range? Normally, I would think something less than 5, which works out to a lot less I bet. Even probation would be reasonable (if you can get that for a Third Degree Felony).

    Normally, I would put a "worth" on this case of felony probation, assuming they've got them on the manufacturing the fake license. Hardly anyone goes to prison on a first offense for a non-violent crime. But, then again, this is Texas, the execution capital of the world.

    But this is not a normal case. There are too many x factors to really predict an ending. The prosecutor may simply refuse to plea bargain and ask for the maximum 10 years if convicted (assuming I'm right that the alteration of government document charge doesn't stick). He wouldn't get it, unless the entire system is corrupt.

    It could be spite. I have also seen prosecutors just decide to be jerks. Feds don't plea bargain at all. But there seems to be a political angle here.

  3. You do realize that your (and other lawyer blogger) statements that the prosecutor has total control over the GJ and will get an indictment if he wants it and vice versa, is just what the black lives matter crowd said about the STL County Ct in the Michael Brown case.

    1. This is limited to Grand Juries, and it is stone cold fact.

    2. I don't disagree with you about this case. The Michael Brown case was with a Grand Jury as well.

  4. Ah! Grand juries and their affinity for ham sandwiches. I will have a read of the particulars.

    "Mother of Mercy! Is this the end for RICO?"

    1. Bear has run Grand Juries. Once he was going to indict a ham sandwich, but he got hungry and ate it. Bear does not mean to leave the impression that prosecutorial misconduct is the norm. In many places it's just the normal way of charging cases. In other places the prosecutor just files an information and there's a probable cause hearing before the court with the defendant present, but defense counsel is really hamstrung.

      But it remains a fact that the prosecutor is in complete control with no oversight. He's controls everything the jurors see, hear and know. So of course, he gets what he wants. And usually that's okay, because an adversary proceeding will follow. In this case, however, it is difficult to imagine the degree of chicanery to convince jurors to indict on buying body parts. And the prosecutor clearly overcharged.

    2. I served for a year on a Grand Jury, part of the time as Deputy Chairperson. Absolutely the prosecutor gets what he wants. I believe there were a few minor exceptions, but honestly I can't even be sure of that. I remember once I got angry and told the prosecutor privately that there was no way we would indict the scared kid he was after. He politely told me that they had no intention of indicting him; they just wanted to frighten him enough that he would incriminate others.

      On a related topic, I noticed that when a lawyer was called as a witness we could expect most of the questions to be answered with the same three words. Would you legal gentlemen care to guess what they were? (Hint: nothing to do with attorney-client privilege; it was rare that anyone asked a question that we knew could be dismissed so easily.)

      Elizabeth R

    3. I wonder if any of this chicanery was advanced and conducted via the United States mails.

    4. Yeah, I'm surprised the Feds haven't dropped a terrorist case or two and jumped on this. You think Texas is tough, the Feds... as a Christian Bear, I cannot say what i think.

    5. Elizabeth, I have never been called to testify at a grand jury, and I don't know. (Is that the answer LOL). That early in a case, it would probably be truthful. I always prohibited clients from telling me their side of the story until after discovery, so they would not get locked into some BS story and I could could assist them in framing the defense account in the most favorable light.

    6. Being a Catholic, I often would baffle my confrères with the notion that R.I.C.O. ought to apply to the US Catholic Church in respect of the cover-up of child sexual abuse by priests and their calculated relocation throughout the United States to avoid prosecution. It appeared to be meet the text book definition of a corrupt organization under 18 U.S.C. Ch. 96.

    7. Close - the actual phrase was "I don't remember." The extent of the amnesia could be truly remarkable. One person I remember used the phrase so many times that the prosecutor asked him something extremely simple (I think it was his name). He got part way through "I don't..." before realizing he really should give the correct answer.

      We did not usually believe them, but I'm pretty sure they didn't care whether we did or not.


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