The Grand Jury As Sword

Former Chief Judge of the Court of Appeals, Sol Wachtler, offered that a grand jury would indict a ham sandwich if a prosecutor wanted it to.  That the grand jury was conceived as a buffer between the authority of the state to prosecute at will and the right of a citizen not to suffer prosecution in the absence of probable cause is long forgotten.

Grand jurors, ordinary citizens whose civic virtue extends as far as facilitating a prosecutor’s job, are hardly skeptical about accusations put before them, but rarely quite as viciously engaged in the inquisitorial role as they were when Erica Jean Dockery testified before the Harris County grand jury in 2003.  Via the Houston Chron’s Lisa Falkenberg,

They seemed convinced that Ericka Jean Dockery’s boyfriend of six months, Alfred Dewayne Brown, had murdered veteran Houston police officer Charles R. Clark during a three-man burglary of a check-cashing place, and they didn’t seem to be willing to believe Dockery’s testimony that he was at her house the morning of the murder.

“If we find out that you’re not telling the truth, we’re coming after you,” one grand juror tells Dockery.

“You won’t be able to get a job flipping burgers,” says another.

The grand jury minutes revealed that Dockery, who came in with testimony that Brown was at home when the murder happened, was bullied and threatened by grand jurors until she caved.  After all, it’s the grand jury’s job to get at the truth, and the truth is whatever they tell you it is, right?

“Hey, Dan,” the foreman calls to the prosecutor. “What are the punishments for perjury and aggravated perjury?”

“It’s up to 10 years,” Rizzo responds.

“In prison. OK,” the foreman says.

And,

A bit later, a female juror asks pointedly: “What are you protecting him from?”

“I’m not protecting him from anything. No ma’am. I wouldn’t dare do that,” Dockery eventually responds. As Rizzo and the grand jurors parse Dockery’s every word and challenge each statement, she complains they’re confusing her.

“No, we’re not confusing you,” a grand juror says. “We just want to find out the truth.” . . .

See? It’s just truth. You got a problem with the truth?

When the grand jury returns, the foreman says the members are not convinced by Dockery’s story and “wanted to express our concern” for her children if she doesn’t come clean.

“That’s why we’re really pulling this testimony,” the foreman tells her.

The foreman adds that if the evidence shows she’s perjuring herself “then you know the kids are going to be taken by Child Protective Services, and you’re going to the penitentiary and you won’t see your kids for a long time.”

Do it for the children.  After all, what better way to get to the truth than to threaten a witness with not seeing her children for “a long time.” Truth is a wondrous thing.  Except when the inquisition goes a tad astray.

According to the Chronicle’s Lisa Falkenberg, seven years later, a phone record showed up proving that Brown had called Dockery from her apartment on the morning of the murders, supporting his story — and hers, before she was pressured to change it. That important bit of exculpatory evidence was found in the garage of a Houston homicide detective.

Oops. Those darn cracks again, through which the exculpatory evidence just happens to slip. That can happen, you know.  On the bright side, it’s not like Brown had been executed. Yet.

Grand jury proceedings are secret, theoretically for the protection of the accused.  Then again, grand juries theoretically exist for the protection of the accused as well, even though that hasn’t turned out nearly as well as it was supposed to.  But we eventually get to see the transcripts before a grand jury witness testifies at trial.  How this failed to happen here is curious. From Texas Court of Criminal Appeals’ affirmance of Brown’s conviction:

Erika Dockery, who testified for the State, was appellant’s girlfriend at the time of the offense and lived with him at the Plum Creek Apartments. Her testimony established that appellant demanded that she lie to the grand jury investigating the crime and provide him with an alibi.   She obliged, but later admitted that she had lied. She was charged with aggravated perjury, a fact that was made known to the jury, and she admitted to drug use.

But then Dockery went from exculpatory witness to the prosecution’s best friend:

Most importantly, Dockery testified that she had regularly visited appellant at the jail after his arrest, and on the last day she visited him, she pleaded with him:  “I need-I want to know the truth. Did you do this?  I want to know. Did you kill the lady? Did you shoot the policeman? I need to know. Did you do it?” Appellant eventually responded by putting his head down and saying, “I was there. I was there.”

Except that the land-line evidence that somehow disappeared in the detective’s garage proved that Brown was at home at the time of the murders, as Dockery first testified to the grand jury before she saw the light.

Was the defense somehow denied Dockery’s grand jury testimony, or did they assume that she did, in fact, begin by offering an exculpatory lie, and thereafter told the truth when pressured by the grand jurors with the loss of her children?  Clearly, the merit of her testimony shifted markedly after it turned out that there was documentary evidence supporting her original claims, but that just raises the question of why the defense didn’t search for proof of the telephone call before trial.

But hey, it’s not like Brown has been executed for a murder he didn’t commit.  Yet.  And who can blame grand jurors for wanting to make sure that a killer didn’t get away?

4 comments on “The Grand Jury As Sword

  1. Wheeze the People™

    My mother taught me to never let an inconvenient truth get in the way of a necessary lie, especially if you must lie to “protect the children”. The grand jury (and seemingly defense counsel) rightly focused their concern on the most important of issue — protecting the children and their future. How can you now fault these do-gooders?? Children first; justice second (or 222nd, take your pick) . . . But in the end, it will all work out as God planned; seven years on Texas’ death row ain’t as bad as people like to make out . . .

  2. skitch

    Nothing better than the good ole’ coercive subjection inference card up one’s sleeve…!

  3. John Barleycorn

    Very disturbing all the way around including the defense not locking down fundamental nuts and bolts.

    Very,very,very,very,very….Very troubling behavior on behalf the state carried out by many.

    But, don’t throw the grand jury out with the bath water. Just don’t do it esteemed one. Just don’t do it!

    P.S. I wonder what else was/is in that garage?

  4. Pingback: Tunnel Vision & The Falkenberg Articles | Richard Steven Patterson | Texas Lawyer

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