A Texas Drama: the 'Runaway' Grand Jury

Feb. 15, 2008— -- Members of a Texas grand jury that indicted a state Supreme Court justice filed a rare lawsuit this week asking to publicly speak about the secret evidence in the case, adding a new layer to a bizarre legal drama that has captivated Houston for more than a month.

The ongoing conflict between the handful of jurors and the elected district attorney, who has so far refused to prosecute the case against Supreme Court Justice David Medina, has all the trappings of pulp fiction: charges of political corruption; a "runaway" grand jury; and an embattled prosecutor accused of sending racist and sexist e-mails.

Six of the grand jurors now want to discuss the evidence they heard during the grand jury proceedings, which are secret, so they can defend themselves against accusations that they were a "runaway grand jury." They also want to bring the evidence they heard to a new grand jury in the hopes of convincing it to indict Medina again, according to court papers filed this week.

The district attorney's office "was not cooperating as we were attempting to investigate the case," said Jeffrey Dorrell, the assistant foreman who filed the lawsuit on behalf of the other jurors. "They obviously acted to terminate our investigation in the womb."

"This grand jury," he added, "has been subjected to more public abuse than any grand jury that I know of at least in the last 80 years."

Several criminal law experts said this appeared to be the first lawsuit filed by grand jurors against a prosecutor. "I'm not aware of anything like this ever happening," said George Dix, a University of Texas law professor who has written books about criminal procedure.

The dispute began Jan. 17, when the grand jury indicted Francisca Medina for arson for allegedly burning down the home she owned with her husband, David Medina. David Medina was indicted for allegedly tampering with evidence in the case, a felony. The Medinas have denied the charges.

Though the district attorney's office originally brought the case to the grand jury, within hours of the indictment District Attorney Chuck Rosenthal said the charges would be dismissed because of insufficient evidence.

Dorrell and grand jury foreman Robert Ryan came forward and said Rosenthal's office was hampering their investigation and suggested that the dismissals were politically motivated. Rosenthal and Medina are both Republicans.

The lawsuit says Rosenthal's office had been uncooperative when jurors asked for information about the Medina case. Dorrell told ABC News that after jurors voted to indict Medina, they got into a heated argument with assistant District Attorney Vic Wisner. Wisner refused to file the indictment and stormed out, slamming the door behind him, Dorrell said.

Wisner and Rosenthal did not return phone calls seeking comment. Both have publicly denied having any political motivations, and Wisner has said publicly several times that he is continuing to investigate the case.

Lori Shaw, a law professor at the University of Dayton, said the grand jurors may have had enough evidence to establish the probable cause needed to indict Medina. "But it's a big jump from probable cause to proof beyond a reasonable doubt," she said. "The prosecutor is saying we don't have enough to win. If you're going to trial, you want to win."

Grand juries determine whether there is probable cause to charge someone with a crime. Though grand juries usually work closely with prosecutors, in Texas the ultimate decision whether to indict is made by the jurors, not the district attorney.

The day after Dorrell and Ryan's accusations, the Medinas' attorneys asked a judge to hold them in contempt of court for revealing grand jury proceedings. The two were criticized by Medinas' lawyers for "making a mockery of the grand jury system" and of being "a runaway grand jury in a Lamborghini," according to the lawsuit.

"I've never seen a grand jury that has attempted to take the law into their own hands and be so persistent about trying to go outside the law," Terry Yates, Medina's lawyer, told ABC News. "It's really remarkable, and it makes you question the motives of these people."

A judge refused to hold Dorrell and Ryan in contempt, and the jurors tried to continue the Medina investigation. Before they could, Judge Jim Wallace dismissed the grand jury, finding that it had been improperly impaneled because of a technical error by the district attorney's office.

But Wallace criticized Rosenthal's decision to dismiss the indictment, saying that prosecutors often continue to investigate cases after defendants have been indicted. "Why it was that this case has any special need to be dismissed is beyond me," he told ABC News.

The grand jury investigation is not the only problem facing Rosenthal. He recently ended his re-election bid after e-mails reportedly containing racist and sexist comments and love notes between Rosenthal and his secretary were published in the local press. Rosenthal faces a hearing on potential contempt charges for deleting some of his e-mails that were subpoenaed during a civil rights lawsuit.

Wallace and others were skeptical that Dorrell and the other jurors would prevail in their lawsuit. Grand jury investigations are kept secret in order to protect the reputations of people who may be targets of a criminal investigation that never leads to formal charges. Secrecy is also thought to encourage witnesses to testify honestly.

"The whole purpose of the grand jury is for people to come forward knowing there won't be repercussions," Wallace said. "Otherwise it jeopardizes the entire process if people are worried that what they say might get out."

The jurors "want to tell their side, but that shouldn't make any difference," he said. "They should abide by their obligation to maintain confidentiality even if it means they, in their eyes, look like they're at fault."