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Does Tarrant County DA have different grand jury standard for suspects who are cops?

Tarrant County District Attorney Sharen Wilson
Tarrant County District Attorney Sharen Wilson Star-Telegram Archives

Tarrant County District Attorney Sharen Wilson recently announced that her office is seeking an indictment for murder against former Fort Worth Police Officer Aaron Dean in the shooting death of Atatiana Jefferson.

On the surface, this seems like a welcome step. But Wilson has violated her own protocol for handling “law enforcement incidents.” Beyond that, her announcement exposed two grand jury policies within her office: one for law enforcement and another for everyone else.

According to the “Law Enforcement Incident Protocol” she established, officer-involved incidents resulting in serious bodily injury or death in Tarrant County are to be handled by the Law Enforcement Incident Team, or LEIT, within the Tarrant County District Attorney’s Office. The team is made up of two former police officers who are now prosecutors.

This protocol requires the team to “present all cases thoroughly and neutrally … to ensure that the grand jury has all the facts and law needed to reach a just decision.” It allows the defense attorney representing the involved officer to make a presentation to the grand jury — a benefit not afforded to civilian defendants.

And perhaps most importantly, it clearly states that the team “will not make a recommendation to the grand jury about whether or not to seek criminal charges in any LEIT case.”

Wilson’s announcement that she would seek a murder indictment not only violates the policy she implemented, it is also a strike at the independent function of the grand jury. It’s a political sleight of hand presenting the grand jury as either a puppet or a scapegoat.

The purpose of a grand jury is to act as an independent reviewer of facts to determine if probable cause for an offense exists. This is a low-level finding; most cases are indicted by the grand jury exactly as they are presented by prosecutors.

In fact, prosecutors are the only attorneys allowed in the grand jury room. Defense attorneys are not allowed inside, and no judge oversees the proceedings.

In most Texas counties, however, defense attorneys are permitted to submit “packets” for grand juries to consider. These packets can include anything that might assist the grand jury — defenses, mitigation or exculpatory materials. Discerning prosecutors welcome these packets, as they help weed out weaker cases at the starting line.

In early 2019, Wilson’s office implemented a new policy — unlike any found anywhere else in the state — limiting grand jury defense presentations to sworn affidavits from fact witnesses and the defendant’s own testimony. For reasons that are unclear, this new policy applied to civilian defendants but not law enforcement officers accused of crimes.

Most people assume grand juries receive all the information to make the right determination, but that is no longer the case in Tarrant County. The coexistence of this new policy and the Law Enforcement Incident Protocol has created two tiers of justice in Tarrant County — one with unfettered grand jury defense presentations for members of law enforcement and another that largely disallows grand jury defense presentations for everyone else.

This double standard undermines due process, fairness, and justice itself. Prosecutors take an oath to seek justice. The DA’s disparate policies for otherwise equally culpable individuals make it impossible for line prosecutors to live up to their oaths.

Policies that rob grand juries of their ability to consider all evidence betrays a lack of faith in the very system Wilson was elected to uphold.

Benson Varghese is a criminal defense attorney in Fort Worth and the managing partner of Varghese Summersett. Prior to starting his own firm, he was a Tarrant County prosecutor.
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