Legally Speaking: Twelve Angry Men (and Women)

John G. Browning Jan. 29, 2008, 8:48am

Last week, I reported on the strange case of Texas Supreme Court Justice David Medina. Following the June 2007 fire that destroyed his Houston-area home under what Harris County Fire Marshals office investigators described as suspicious circumstances, Justice Medina and his wife Francisca were indicted by a grand jury.

Mrs. Medina was charged with arson for allegedly "unlawfully starting a fire by igniting a combustible fluid." Justice Medina, meanwhile was charged with the felony of tampering or fabricating evidence, for allegedly providing a letter regarding the fire "with knowledge of its falsity and with intent to affect the course and outcome of the investigation."

After the jury returned its indictments, the Harris County District Attorney's office surprised the members of the panel by asking District Judge Brian Rains to dismiss the charges on the grounds of insufficient evidence, a move granted the day after the indictments.

As if that wasn't enough, the legal saga took another turn on Jan. 21 when Judge Jim Wallace, of the 263rd District Court, nullified any indictments issued by the grand jury. According to Judge Wallace, the order which extended the panel's term from Nov. 2, 2007, until February was not properly drafted.

Embattled Harris County D.A. Chuck Rosenthal acknowledges that a prosecutor did not file the correct paperwork to extend the term of the grand jury, and that a new division chief compounded the error by failing to detect it.

This latest development not only invalidated the indictments against the Medinas, it also nullified indictments that the grand jury returned during its holdover session against approximately 30 other people on unrelated charges of mortgage fraud. But the move also angered the grand jury members, eight of whom held a press conference after Judge Wallace's decision.

Calling the district attorney's treatment of the case incompetent and even "arrogant," they have vowed to make a presentation en masse to an incoming grand jury in February.

"We will pick a convenient date. We will give them our witness list. We will give them the information we have uncovered," says Robert Ryan, the foreman of the grand jury that originally indicted the Medinas.

Ryan says that as a result of the recent twists in this tale, there are "12 angry jurors," but there are also "12 credible citizens" who will bring the case to a newly empanelled grand jury.

Jeffery Dorrell, the assistant foreman of the grand jury, maintains that he and his fellow jurors are resolute in their belief that the indictments were justified. In response to statements by representatives of the DA's office that there simply wasn't enough evidence to convict the Medinas,

Dorrell said, "When you get an indictment, before you run to court the following morning to dismiss it, you investigate the case some more….When the DA's office manifests, as it has, an intent not to pursue this case any further, then it's a reasonable inference that there aren't going to be any more presentations to any new grand jury. Fortunately, in this state, any citizen can contact the foreman of a grand jury and ask to present a case."

While representatives of the Harris County DA's office haven't commented publicly on such plans, prominent Houston criminal defense attorney Dick DeGuerin ( who heads up Francisca Medina's defense team) sharply criticizes the original panel, calling them "drunk with the power that grand jurors have" and saying "They need to give it a rest."

But Mr. Ryan and Mr. Dorrell have a valid point. According to Article 20.09 of the Texas Code of Criminal Procedure, a grand jury "shall inquire into all offenses liable to indictment of which any member may have knowledge, or of which they shall be informed by the attorney representing the State, or any other credible person."

There certainly doesn't appear to be anything preventing Mr. Ryan, Mr. Dorrell and their fellow jurors from presenting what they know to a newly-empanelled grand jury. After all, the grand jury – as was its job – didn't determine guilt or innocence. Working to determine whether or not probable cause exists to bring felony charges (a lesser standard than guilt beyond a reasonable doubt), a grand jury decides whether or not a crime occurred in Harris County, whether or not the crime constituted a felony and whether sufficient evidence exists to bring the case to a petit jury.

Justice Medina has consistently maintained that he and his family are innocent in this matter, and has publicly said that he is "very disappointed" by the grand jury's decision. He also denied that politics played any role in the dismissal of the charges, a position echoed by Harris County DA Chuck Rosenthal.

Rosenthal, whose own credibility has come under fire in the wake of revelations about embarrassing emails originating from his office, told the Houston Chronicle, "It's part of my oath that I don't prosecute people if I don't think there's enough evidence to do so."

Justice Medina's defense attorney, Terry Yates, describes his client as "disheartened" and "hurt" by the original indictments, and claims that Justice Medina's daughter had received threats from an individual who had allegedly been stalking her prior to the fire, as well as a threatening letter after the fire.

Of course, Justice Medina's protestations of innocence about an arson at his home during a financially troubled time in his life might have sounded more convincing if they hadn't been followed by revelations about alleged misuse of campaign funds.

According to records analyzed by the Houston Chronicle, Medina paid himself approximately $13,500 in 2007; $26,400 in 2006; and $17,000 in 2005 in unusually generous mileage reimbursements, funds for which came from campaign contributions.

It is against state law to convert political contributions to personal use, and the Texas Ethics Commission has interpreted this law to forbid appellate judges from using campaign money to pay the costs of commuting between the judge's home city and the city where his court is located. Justice Medina has returned a portion of the allegedly improper mileage payments to his campaign account.

Recently, fellow Supreme Court Justices Nathan Hecht and Paul Green have also came under fire for allegedly misusing political contributions to pay for personal travel.

So, until a new grand jury decides to weigh in on the arson at the Medina home, where does that leave us? The Harris County DA's office has been criticized for what some took to be its politically motivated handling and incompetent work in the Medina matter.

Even if you believe District Attorney Rosenthal's protests that politics played no role in his unusual and speedy decision to dismiss the indictments, there doesn't seem to be any getting around the bungling over extending the term of the grand jury.

Thanks to that comedy of errors, not only did the Medina indictments disappear but 30 defendants accused of mortgage fraud are also breathing a lot easier these days.

Are taxpayers supposed to be reassured that there's no political cronyism at work here, just to find that the Keystone Kops are running the Harris County DA's office?

I think the incoming grand jury's going to have a lot of questions to ask.

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